Director of Public Prosecutions v Mahat
[2012] VCC 843
•22 June 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00344
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAILENDRA MAHAT |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 22 June 2012 | |
CASE MAY BE CITED AS: | DPP v. Mahat | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 843 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Stefanovic | |
| For the Accused | Ms J. Munster |
HIS HONOUR:
1 Sailendra Mahat, you have pleaded guilty to one count of causing serious injury recklessly. That crime carries a maximum penalty of 15 years' imprisonment.
2 You are still only 23 years of age and therefore a young offender. You are a Nepalese man and have no prior convictions. You pleaded guilty, or offered at least, to plead guilty at the earliest reasonable opportunity, and those matters of course, I take into account. I accept that with your limited capacity to rationalise your circumstances, that there remains a degree of remorse and you obviously get the utilitarian benefit of such a plea of guilty. All those matters of course go very much in your favour.
3 Whilst you disagree with some of them, the facts outlined in the Summary of the Prosecution Opening describe the offence in sufficient detail for me, and for my purposes.
4 On 11 October 2011, you were employed at a café in Heidelberg. Your role was to wash dishes and to sometimes help in the kitchen. I note that you have been out here since 2008 from Nepal. In Nepal you were well educated, went well at school, and indeed, were doing biology. I can understand that the situation in which you found yourself was not one of your choosing. You had come out here to study and were feeling very frustrated. The other people working in the kitchen were also Nepalese, and indeed, your ultimate victim was your friend. There is no Victim Impact Statement before me.
5 The café was getting busy and people were in a rush to serve customers. You, on the description of witnesses, were being difficult to staff, blocking their way while you were putting away dishes and apparently talking too much.
6 Shortly after seven o'clock at night, you got into a disagreement with Mr Chitraeka, the ultimate victim and derogatory comments were made. You are both Nepalese and of different castes, and I am not buying into that.
7 In any event, the argument involved one of you being hit with a box of gladwrap to the face. Mr Chitraeka says it was you did it to him, you say it was he did it to you. I do not think it matters much in the long run. In any event, no injury was caused by that. You were then pushed away.
8 However, at that point in time the matter escalated dramatically. You picked up a large chef's knife from a chopping block, the photo of which I have seen. It is about 35 centimetres long with a blade of about 20 centimetres. You picked up that knife in your right hand and slashed at Mr Chitraeka. The knife made contact and cut him from the left side of his throat, causing an 11 centimetre cut from under his left ear to the front of his left jaw.
9 At that point another witness was about two metres away, and was standing between you and Mr Chitraeka. He fell to the ground and was bleeding profusely. You dropped the knife and literally ran away. You apparently went home. I note that, and I will be going to this in a moment, that you were at that point only recently into stable accommodation.
10 Your victim was taken to St Vincent's Hospital with initially life threatening injuries. It was revealed he had a transacted jugular vein which was ligated, and a sternocleidomastoid muscle was partially transacted. The wound was washed out and closed, he received 18-19 stitches. He was observed as an inpatient and sent home a day or so later. I have seen photographs of the injury. I sentence on the basis that the injury has resolved.
11 At the committal, witnesses said that you had been behaving very oddly, that you had been muttering to yourself and clearly had, at that period of time, mental difficulties. On the material before me, you clearly still do.
12 The circumstances leading up to it were, that in March 2011 you had been the victim of a robbery. In April 2011 you were engaged in serious, threats at least, of causing self-harm. In September 2011 you were arrested by police in circumstances which are difficult to ascertain, but in any event there seems to have been a physical altercation. You have become somewhat fixated over that. What part it played on this night, I have really got no idea. That was the lead up.
13 You had been in circumstances where the courses you were doing, the costs were being increased. You had no family and no support. It was in that scenario that you, as you said to police yourself, simply snapped with a spontaneous strike with that knife.
14 The injuries are certainly serious, albeit that they apparently have resolved. I accept that in your particular situation you were in a very dishevelled mental state, if I can put it that way. And, there was no premeditation whatsoever. Your conduct before, in muttering to yourself and talking to yourself indicates that you were in real psychological difficulty.
15 The principles enunciated in Verdins do not require some formal diagnosis, but one still must be cautious about applying them. I think that this is a situation where one can fairly - and I interpolate that I have read the report of Dr Ruth Vine who was concerned about your fitness to plead at one stage - be described as subject to a psychological condition which rendered your moral culpability a little less than it might otherwise have been.
16 I think also, general deterrence in a situation like this have to be sensibly moderated. You have no prior conditions and I think in your particular situations, specific deterrence are not of great moment either. However, the offending remains serious, carries a significant gaol sentence and in my view, must attract an active custodial sentence. Prospects of denunciation and appropriate punishment must be given effect to.
17 You have had real difficulty in gaol. There is a report from Dr Ruth Vine which I have read and which outlined your circumstances. There are also two reports from the psychiatric nurse at the Melbourne Magistrates' Court. During the course of the committal you were behaving oddly, and it became clear towards the end of that, as the magistrate endeavoured to give you the caution that you were mentally very unwell indeed.
18 You were distracted, talking about things that had no relationship to what was actually in front of you. Since you have been in gaol you have had numerous assessments by psychiatric nurses, psychiatrists and the like. You have been in the acute assessment unit for weeks while you were in custody, and I have no doubt that you have a very, very unhappy time in prison.
19 You came out here from Nepal in 2008. You have no family that you have any contact with here. Since you have been in custody since October of last year, you have had no visitors and will not get any. The only visitors you get are legal representatives.
20 The fact is that you are Nepalese and have very limited English. I doubt that there are any Nepalese prisoners that you are even able to talk to. You have no cultural contact, no linguistic contact and no social contact with anyone of your own people. You have displayed to the psychologist and psychiatrist who have spoken to you, that you have certain, in my view, paranoid views as to how you have been treated and they seem to relate back to the incident that you had with police, back in September.
21 To come from a family in Nepal where you were doing well at school, to find yourself washing dishes in a restaurant where you felt you were not even being given recognition or appropriate responsibility, I can understand. On top of all that you do not have a visa. You came here on a student visa and that has now expired. This is not the sort of situation where I need evidence as to what will occur, because you do not have a visa you will be, if released, taken immediately into detention.
22 I sentence on the basis that you do wish to stay in Australia and do wish to further your education, and you would like to finish the course that you started. I sentence on the basis that you will undergo the balance of this sentence, with the fear of deportation and the fear of those matters not being available to you. I think, as a matter of common sense that the odds on you being deported are very high indeed, but I do not actually sentence on that basis by reason of decisions of the Court of Appeal.
23 As discussed with counsel, I think this is a situation which requires a pragmatic approach, and Mr Stefanovic has put the Crown position, I do not think it is all that far apart after discussion. I think the prospects of your rehabilitation are probably best served if you go back to Nepal Mr Mahat. But in any event, if you can get psychiatric and psychological treatment, you may do better.
24 The risk of you re-offending or you have never offended before, particularly in this way I think is very low.
25 You have done, certainly at least, a certain proportion of your sentence in the psychiatric unit, at gaol at Port Phillip. I note that in April of last year you were in fact admitted to hospital with a mental condition. In all those circumstances and whilst these sentencing remarks are somewhat truncated, I accept that an active custodial sentence is inevitable, but I think it is one which should allow the Parole Board the opportunity to release you if they choose to do so, under very supervised conditions.
26 If you wish to remain in Australia, the Parole Board, I dare say, can assist you in making the appropriate applications and the like. I do not know whether you are better off in a gaol or a detention centre, but that will be up to the Parole Board I think, to make that decision and I am sure that they are well qualified to do so.
27 But taking into account, particularly your youth, there are no prior convictions and the rather extraordinary situation in which all this occurred, balanced against the seriousness of what you did, you are sentenced as follows:
28 On the charge of recklessly causing serious injury, you are sentenced to be imprisoned for a period of two years. I direct that you serve a minimum term of 12 months before becoming eligible for parole, and I direct that 254 days be reckoned as having been served under this sentence.
29 Pursuant to s.6AAA of the Sentencing Act I say that, but for you plea of guilty, you would have been sentenced to be imprisoned for a period of three years, with a minimum term of two.
30 The disposal order has been made, are there any other orders I need to make?
31 MR STEFANOVIC: No Your Honour.
32 MS MUNSTER: No Your Honour.
33 HIS HONOUR: All right, obviously you can explain all that to him Ms Munster.
34 MS MUNSTER: Yes, Your Honour I'll do that, yes.
35 HIS HONOUR: Very well. I will just stand down, I will come back at quarter to, and proceed with Mr Dowdle's matter.
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