Director of Public Prosecutions v Mahat
[2024] VCC 862
•11 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-23-02145
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SALIH MAHAT |
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JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 May 2024 | |
DATE OF SENTENCE: | 11 June 2024 | |
CASE MAY BE CITED AS: | DPP v Mahat | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 862 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Plea of guilty – intentionally causing serious injury – common law assault – making a threat to kill - committing an indictable offence whilst on bail – taser – knife – disguised – premeditation and planning– no prior convictions – subsequent convictions – domestic violence offending – intimate partner violence – intervention order – youthful offender - reasonable prospects of rehabilitation - significant utilitarian value of plea.
Legislation Cited:
Cases Cited: R v Verdins & Ors [2007] VSCA 102; R v Mills [1998] 4 VR 235;
Azzopardi v The Queen [2011] 35 VR 43; Bugmy v The Queen [2013] HCA 27.
Sentence: Aggregate sentence of 19 months' imprisonment and a Community Correction Order for a period of 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr C. Brydon | Office of Public Prosecutions |
| For the Accused | Mr W. Barker | Slades & Parsons Criminal Law |
HIS HONOUR:
1Salih Mahat, you have pleaded guilty to intentionally causing injury, common law assault, making a threat to kill, and contravening a Family Violence Intervention Order with intent to cause harm or fear, and the related Summary Offence of committing an indictable offence whilst on bail. The maximum penalties are as follows: intentionally causing injury - 10 years' imprisonment; common law assault - five years' imprisonment; make threat to kill - 10 years' imprisonment; contravening a Family Violence Intervention Order - five years' imprisonment; committing an indictable offence on bail - three months’ imprisonment.
2The facts of this matter were set out in detail in the prosecution opening which was tendered as an exhibit on the plea and read in open Court. I will summarise the contents of that opening.
3The complainant in this matter was born in December 2005. You were born in July 1999. There is a co-offender in this matter, AB, who was charged months after you. Her case is currently listed for a mention in the Children's Court.
4The complainant was previously your girlfriend. You began dating her in around September 2021 and you broke up in March 2022. Your breakup was acrimonious, and a Family Violence Intervention Order was served on you on 28 September 2022, in favour of the complainant. The order is a full no-contact order which precludes you from contacting or communicating with the complainant by any means or approaching her or attending within 200 metres of any place where she lives, works, or attends school or childcare.
5In the lead-up to the offending in this case the complainant posted offensive material online about you and your family.
6On 9 May 2023, you added the complainant on Snapchat and started sending her messages using a pseudonym, 'Nitanbg'. You asked to meet up with her and offered to give her money. You offered to come to her house and pick her up. The complainant asked who you were, and you said, 'Don't fucken worry, you know who this is don't play dumb'. You said to her, 'I want to see you, I miss you'.
7The complainant forwarded the Snapchat account details to a friend who messaged you asking you to stop contacting her. You responded by referring to the complainant as a slut and suggesting you would kill her. The complainant's friend forwarded your messages to her.
8
You sent her two more direct messages as follows, 'Do you want me back, you slut? Just say you do so I can come back', and 'It's fkn Salih you dumb bitch'. On 5 June 2023, the complainant received a friend request from your co-offender,
AB, on Snapchat. The complainant had never previously met AB. AB complimented the complainant and replied to one of her Snapchat stories and they exchanged messages. On 7 June 2023, the complainant received another Snapchat friend request with the account going by the name of something like, 'youregonnagetsmoked'. Eventually, using that account, you called the complainant. You told her you owed her money for a phone you had previously damaged. You and she then had an argument over issues in the relationship. She sent you a message saying, 'Don't ever contact me again or I am going to call the police'. She blocked your account.
9
At about 1.40 pm that same day, the complainant received a message from
AB, who said she was going to meet up with some friends at a park in Wyndham Vale. She invited the complainant to come along. The complainant agreed and asked AB to pick her up from an address around the corner from her home.
10At about 6.00 pm the complainant was standing on the street waiting for AB to pick her up. AB arrived driving a Toyota sedan. The complainant got into the front passenger seat. AB was wearing a black ski mask which showed only her eyes. You were one in the back of the car with another man, and both you and the other man were also wearing black ski masks. When the complainant turned around, she recognised you. She had never seen the other man before. The complainant asked, 'What are you doing here'? AB and the other man told the complainant that you just wanted to talk to her. The complainant said to you, 'Okay, let's talk now'. You replied, 'No, you can wait until we get there'. The complainant said nothing for the rest of the drive because she was scared.
11AB drove the vehicle to Wyndham Vale Reserve, approximately 30 minutes away. There, you opened the complainant's door and dragged her out of the car. You asked her to walk with you into the parkland area. She refused. You said to her, 'If you don't come here, we will drag you'. AB told the complainant she wanted to fight and said to her, 'I'm gonna fuck you up'.
12AB then punched the complainant to the face multiple times. You pushed the complainant to the ground. The three of you stole her shoes. The complainant's phone fell to the ground. You tried to take it from her hand, and she picked it up. AB kicked her to the stomach and the back about three times and continued punching her to the head. She was still on the ground.
13The complainant could see a flash on the unknown male's phone. This male then said, 'This is what happens when you talk shit'. The complainant thought the male was filming her.
14The complainant was unable to stand up. She said, 'Let's just talk'. You placed her in a headlock with your arm around her neck and dragged her into the parkland, pushing her onto the ground near a bush. The unknown male produced a taser about the size of a mobile phone. He turned it on which caused it to spark and make a noise. He said to the complainant, 'If you don't unlock your phone and give it to us, we will tase you'.
15The complainant pretended to unlock her phone, but in fact called Triple 0. The call did not get through. She then called her mother who could hear the complainant being threatened and tasered. She recorded the phone call. She then called Triple 0.
16You then took the taser from the unknown male and tasered the complainant yourself about five times to her legs, which resulted in burns. AB continued to punch the complainant to the head and the unknown man kicked her several times to the head. The complainant managed to get up from the ground. You grabbed her around the neck and placed her in a headlock whilst AB grabbed her legs. The complainant felt as if she could not breathe and was going to black out. The conduct referred from the outset of the assault by AB through to when the complainant was placed in a headlock, as I have just described, is the basis of an intentional injury charge.
17
You then produced a 30-centimetre knife from your pants and held it to the complainant's throat. You threatened that if she did not give you her phone
AB would stab her. AB then threatened to stab the complainant in the neck. This is the basis of Charge 2, common law assault, is you holding the knife to the complainant's throat.
18
You slipped and lost your footing which allowed the complainant to break free and run away. She ran towards a nearby soccer field. You chased her. You yelled at her, 'I'm going to kill you, you're not faster than me'. This is the basis of
Charge 3, make threat to kill.
19You caught up to the complainant and pushed her to the ground. Again, you tried to take her phone. Several witnesses were nearby and saw what was happening and came to the complainant's aid.
20A witness, Mr Sarbabau Bani, was playing soccer when he saw the complainant screaming and running towards him. He saw you chasing the complainant and attempting to grab her phone. Mr Bani approached to intervene, and you said to him, 'Don't worry, it's my girlfriend'. Mr Bani took possession of the phone. You were not able to provide a PIN code for the phone, but the complainant was. Mr Bani returned the phone to the complainant. She looked frightened. She said that the accused had a knife and was trying to attack her and take her phone.
21Soon after, you left the area in the Toyota that you had arrived in.
22The complainant called her family and told them what had happened.
23This offending was committed whilst the Intervention Order was in place and the totality of the conduct constitutes a contravention of the Family Violence Intervention Order intending to cause harm or fear for her safety.
24Police were called, and they arrived and spoke to the complainant and the other witnesses. The complainant made a statement, and police photographed her injuries.
25The complainant was assessed at Sunshine Hospital on 8 June. Her injuries were as follows: bruising to her right eye and temple; burn marks to her legs; an abrasion to her right pinkie finger; bumps on her head; and some cuts to her hands. These are the injuries captured by Charge 1, intentionally causing injury.
26You were arrested on 8 June 2023. A search warrant was executed at your home address. In your interview you denied the allegations of the complainant. You denied being present at all when the assaults took place. You said you were home with your brother, and only left the house to pick up your nephew from school. You told the police you last spoke to the complainant when you broke up with her the previous year.
27Data obtained from your phone indicated that you had had contact with the complainant.
28On 18 October 2023, police executed a search warrant at AB’s address. On her mobile phone were videos showing parts of the offending, including the complainant being assaulted and tasered by you, and AB. You can be heard on the video threatening the complainant to give up her phone.
29
You have no prior convictions. However, you have a subsequent conviction on
25 March 2024 at Sunshine Magistrates' Court for recklessly causing injury, unlawful assault, persistent breach of an Intervention Order, and criminal damage. The complainant in that case was the complainant in this matter.
30You pleaded guilty on 12 April 2024, a week after the case conference had taken place. It is true that the number of the charges on the indictment had been reduced since you were committed for trial, and I take that into account in assessing the timing of your guilty plea. On the other hand, you ran a contested committal in this matter, pursuing the defence that you were not present at the reserve in Wyndham Vale at the time of the offences. The complainant gave evidence. Therefore, this cannot be characterised as an early plea of guilty.
31However, the utilitarian value of your plea is significant. You have spared this court, the prosecution, and the police, the resources required to run a trial. Importantly, you have spared the complainant the experience of having to give evidence again and relive these matters. I accept your plea is consistent with a willingness to facilitate the course of justice. There are no real indications of remorse, though, in this case. Nonetheless, the utilitarian value of your plea is significant, and you are entitled to a significant sentencing discount.
32Finally, the matter that was dealt with at Sunshine in March 2024 is the matter that you were on bail for at the time of this offending, thus the commit indictable offence on bail offence.
Seriousness of the offending
33This offending is accurately characterised as domestic violence offending or an intimate partner violence taking place after the end of the relationship. Taking what you said on your text messages to the complainant at face value, it seems that at least in part the offending occurred because you were not prepared to accept the end your relationship with the complainant, although it does seem you were embittered by some inflammatory remarks made by the complainant relating to you and your family after the relationship ended.
34The authorities about intimate partner violence offending are very clear that general deterrence, public denunciation, just punishment and community protection must be the prominent sentencing factors when sentencing for family violence offending. This has been stated many times in the Court of Appeal, most recently in the case of DPP v Reynolds[1] where the court said:
'The trial courts of this State are imposing sentences for family violence offences with increasing frequency. The court has repeatedly emphasised the need to condemn family violence, in line with community expectations'.[2]
[1] DPP v Reynolds [2022] VSCA 263.
[2] Ibid [75].
35So those principles have some application in this case. There was obviously premeditation and planning involved in this offending. A ruse was arranged to lure the complainant from her home to a place where AB was to collect her in her vehicle. The assault was committed in company. All three of you were disguised, wearing ski masks when the complainant got in the car. Obviously, the plan was to assault the victim, given you had a knife and a taser. You drove the complainant a considerable distance away to assault her. The assault started very soon as you arrived at the Wyndham Vale reserve.
36I view the assault against the complainant in this case as extremely serious. She was vulnerable and the three of you attacked her mercilessly. This was a very nasty incident.
37The intentionally causing injury offence was protracted and involved repeating kicking, punching, tasering and threats. Your headlock of the complainant restricted her breathing on one of those occasions, which is a serious matter.
38The common law assault is obviously a serious example of such an offence. It involved a weapon, namely the knife, which you placed at the victim's throat, an extremely dangerous act, and one which was terrifying to her.
39The use of the taser was another act which must have been very painful and very frightening for the victim.
40The incident only ended because she was able to run away and there were other people present at the reserve to assist her.
41These events took place despite the existence of an intervention order which had been put in place to protect the complainant. Moreover, you were on bail for offending against the same victim, an aggravating factor. There is some overlap between the actions giving rise to the intentionally causing injury and the common law assault offence, and the breach of the intervention order, although there are many other acts constituting breaches of that order, which could only be characterised as persistent and flagrant.
Victim Impact Statement
42The complainant provided a Victim Impact Statement which she read in Court. I do not propose to describe everything she says in that statement, but I will summarise what she says. She says during this incident she believed she was going to die. She referred to being taken to the Royal Children's Hospital. She said the assault has triggered in her feelings of paranoia and depression. It affected her schoolwork. She says the incident shattered her self-confidence and self-worth. She says her schooling has been severely disrupted, including during her Year 12 exam period. Her results suffered. She says her family has helped her recover and rebuild her life after this incident.
43The victim's father and mother also provided Victim Impact Statements. Her father indicates she was an academic high achiever, but her schooling in Year 11 and VCE was affected by the offending. Further, his studies (he was undergoing a Master's) were also affected by the repercussions of this incident.
44His work has been impacted by the many days he has attended police stations, doctors' appointments, psychological appointments and dropping the complainant to and from school.
45The victim's mother refers to the complainant having many friends prior to the incident and becoming reclusive afterwards. She refers to the trauma of what she overheard on the phone. She refers to the subsequent anxiety of trying to find her daughter after that phone call. She says she is angry that her daughter does not feel safe anymore. This offending has caused her and the victim's father significant anxiety.
46The complainant’s mother has been a law student and would have liked to work in criminal law but now feels she is unable to do that.
47It is clear from the Victim Impact Statements that the effect of your offending has been substantial and continues in relation to the complainant and her parents. The impact on the victims is a significant matter informing just punishment for this offending.
Personal circumstances
48Your personal circumstances are set out in the defence plea submissions and in the psychological report from Ms Marlese Bovenkerk, a forensic psychologist, who assessed you.
49You are now 24 years old. You were born in Somalia. You have four brothers and four sisters. Many of your family attended the plea to support you.
50You told Ms Bovenkerk that your father came to Australia initially in 1999 after he finished his university studies in Saudi Arabia. You came to Australia initially when you were approximately five years old and stayed here for two to three years before you returned to Somalia. Your parents wanted you to remain in Somalia to pursue religious studies, believing that was in your best interests. Your mother and three younger siblings migrated to Australia in 2012, and you remained in Somalia with your brother for a further five years. You lived with an aunt in Somalia.
51In Ms Bovenkerk's report there is considerable discussion of your background, and the instability and difficulty of growing up in Somalia. She summarised the impact of all of that at paragraph 118 of her report, where she said, 'Mr Mahat is a 24-year-old Somalian male emanating from a prejudicial childhood where he was exposed to war, death, instability and uncertainty during his formative years. Significantly he described witnessing death and being exposed to dead bodies as a common occurrence in Somalia. These difficulties were further compounded by periods of separation from immediate family members where Mr Mahat felt a sense of abandonment by his parents because he was required to remain in Somalia for a number of years without them'.
52You came to this country finally some approximately four years go. You described it as a difficult adjustment for you, given your past experiences. Your unstable and troubled upbringing was not relied on as enlivening the principles in Bugmy,[1] but it is nonetheless a significant matter in your personal history that I have taken into account in deciding the appropriate sentences in this mater.
[1] Bugmy v The Queen [2013] HCA 27.
53Your mother works as a cleaner at a school, and your father as a teacher and a religious leader at a mosque in Fitzroy and Carlton. Your mother has recently been unwell and was diagnosed with throat cancer.
54Your brother was murdered in 2022 in a violent attack. This has caused you considerable grief and has affected your psychological health.
55Your parents have been supportive of you while you have been in custody at the Metropolitan Remand Centre. You speak to your parents and sister daily on the phone and video calls. They also visit you regularly.
56You have one brother, who is currently at the MRC as well, although he has recently been sentenced and will be transferred to another prison.
57In custody you have worked in the laundry, timber and metal shop and you have completed various courses for which certificates were provided.
58When you are released, you will live with your parents. You intend to return to your Youth Work placement to complete the Diploma you had commenced. You expect to obtain casual work in warehousing, which you did before he was remanded.
59You have had some significant issues with drugs and alcohol, particularly since your brother's death. You have used cannabis, GHB, mushrooms, and you have engaged in heavy alcohol consumption. You said that you were using drugs at the time of the offending. You have participated in Alcoholics Anonymous and Narcotics Anonymous whilst in prison.
60References from your brother attesting to your good character outside of this offending; and from Salih Mohammed, chair of of an organisation called Young Australian People, was also tendered, as well as a reference from Chris Hallam from Yarra Youth Support Services, and Mr Muktor Mohammed, from the Islamic Council. The references generally describe you as a family-oriented person and as being of good character, apart from this offending.
61There are also references to positive contributions you have made and the grief you experienced when your brother died. Mr Hallam, from Yarra Youth Support Services, says that his organisation can provide services to you, and
Mr Mohammed, from the Islamic Council, in his letter says you joined the Muslim Connect program in December 2023 and you will have access to their services when you are released.
Psychological conditions
62Ms Bovenkerk assessed you as suffering from PTSD (possibly complex PTSD) from your upbringing, major depressive disorder, and a prolonged grief disorder. At paragraph 132 of her report, she says that imprisonment will weigh more heavily on you than for someone without those psychological conditions. Mr Barker submitted, and I accept, that I should give some weight to principle 5 of Verdins, namely that because of your psychological conditions a period of imprisonment will weigh more heavily on you than for someone in normal psychological health.[2] He submitted that these factors are compounded by your age, and the fact that this is your first period of imprisonment. I accept that, based on these reasons, that a sentence of imprisonment has and will weigh heavily on you.
[2] R v Verdins & Ors [2007] VSCA 102.
63In the MHARS report provided with the CCO assessment report I ordered; you are described as having a mild mental health problem. Psychological intervention and drug and alcohol counselling are recommended.
64Your counsel, Mr Barker, relied on sentencing principles in relation to youthful offenders. He cited the decision of Mills, where the Court of Appeal said that the ‘youth of an offender, particularly a first offender, should be a primary consideration for a sentence in Court where a matter arises'.[3] Mr Barker submitted that in your case your rehabilitation should be the primary sentencing consideration. He submitted that having regard to your age and the absence of prior convictions a sentence of time served with a Community Correction Order is appropriate. He emphasized your previous good character, represented by the absence of prior convictions.
[3] R v Mills [1998] 4 VR 235.
65The prosecutor, Mr Brydon, accepted the Mills' principles have application and that rehabilitation must be given more weight than what otherwise be the case. He however, emphasised the seriousness of this offending and that it occurred in the context of family violence. He submitted that I must be careful not to let principles of general deterrence and denunciation be overshadowed by your youth. He referred to the decision of Azzopardi where the Court of Appeal acknowledged that there are circumstances where considerations of youth must give way to factors of general and specific deterrence.[4]
[4] Azzopardi v The Queen [2011] 35 VR 43.
66In my opinion, the principles relating to the sentencing of youthful offenders do have application, but I accept the prosecution submission that for this serious offending, occurring in an intimate partner violence context, I must still give substantial weight to general deterrence, just punishment, denunciation, and specific deterrence.
67Furthermore at 24 years of age you are in the upper age range for youthful offender principles, and although they have application, your age moderates to an extent the weight to be given to those principles.
68The prosecution did accept that I could impose a combination sentence of imprisonment and a Community Correction Order, given that I am able to impose a further 12 months of imprisonment, together with a Community Correction Order.
69Accordingly, I had you assessed for a Community Correction Order, and you have been found suitable. You have never been on a Corrections order before. Recommended conditions include community work, drug treatment, mental health treatment, programs to reduce offending, supervision and judicial monitoring.
70It seems to me, given that you do not have a lengthy criminal history, that I can take the view you have got reasonable prospects of rehabilitation, although tempered by the very serious nature of this offending.
71Balancing the gravity of the offending and the need for general deterrence, just punishment, denunciation and specific deterrence, against rehabilitative principles, I have decided that a combination sentence is appropriate, but you will be required to serve a further period in custody before release on a Community Correction Order.
72The sentence that I impose in this case for the charges of intentionally causing injury, common law assault, make threat to kill, and contravening an intervention order, I impose an aggregate sentence of 19 months' imprisonment. For the summary offence of committing an indictable offence on bail you are convicted and discharged. I have taken that into account as an aggravating factor.
73I also impose a Community Correction Order for a period of 18 months. That order will have the following special conditions; 120 hours community work, supervision, drug treatment as directed, mental health assistance as directed, and offending behaviour programs as directed. Fifty hours of any hours performed pursuant to program conditions on the order can be deducted from the community work that I have imposed.
74I allow 369 days pre-sentence detention to be deducted from the sentence that I have imposed today, which means that you have approximately seven months, slightly less, to serve before you will be released on the Community Correction Order.
75Mr Mahat, do you consent to a Community Correction Order?
76OFFENDER: Yes, Your Honour.
77HIS HONOUR: Do you understand that if you breach that order you would be charged with breaching the order and brought back before me and one of the options available would be to re-sentence you in relation to this matter? Do you understand that?
78OFFENDER: Yes, Your Honour.
79HIS HONOUR: If you breach the order, that is if you do not perform any of the conditions of that order, if you re-offend, or if you breach any of the core conditions of the Community Correction Order, which include reporting to the Community Correction Office within 48 hours of your release. What will be the office? Reservoir, you will have to report there within 48 hours of your release. You are then required to obey any lawful directions of Community Corrections; you are required to receive any visits from them or attend as they require.
80You are required to tell them if you change address. You have got to tell Corrections if you want to leave Victoria. If you obtain employment and you want to leave or change your job you also must tell Corrections. There are other core conditions, but they are the fundamental ones. In addition, you must complete all the special conditions that I have imposed, and you must not re-offend during the period of the order, which is 18 months.
81Pursuant to s6AAA I indicate that but for your plea of guilty I would have imposed a sentence of four years with a minimum of two and a half years. Any clarification is required? No? So that paperwork will be sent out to the prison for you to sign. Thanks, Mr Barker, thanks, Mr Robinson, I will adjourn.
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