Director of Public Prosecutions v Mohamud

[2022] VCC 106

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-19-02208

DIRECTOR OF PUBLIC PROSECUTIONS

v

MOHAMUD MOHAMUD

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JUDGE:	HER HONOUR JUDGE MARICH
WHERE HELD:	Melbourne
DATE OF HEARING:	2 December 2021, 28 January 2022
DATE OF SENTENCE:	8 February 2022
CASE MAY BE CITED AS:	DPP v Mohamud
MEDIUM NEUTRAL CITATION:	[2022] VCC 106

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Offending serious example of causing serious injury recklessly – victim attacked without warning or provocation, attack continued after she lost consciousness – offender reluctant to discuss biographical information – history of disadvantage and mental health difficulties inferred – mitigation of sentence in the application of mercy

Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; Verdins, Buckley and Vo (2006) 16 VR 269; Worboyes v The Queen [2020] VSCA 169.

Sentence:                  Five years imprisonment with a minimum of three years and six months before parole eligibility

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms P. Thorp	Office of Public Prosecutions
For the Accused	Mr C. Morgan	Stary Norton Halphen

HER HONOUR:

Introduction

1Mohamud Mohamud, you have pleaded guilty to an indictment containing one charge of recklessly causing serious injury, which carries a maximum penalty of 15 years’ imprisonment. 

2

The circumstances in which you came to commit that offence are set out in the Prosecution Opening for Plea dated 8 November 2021 (Exhibit A).  The prosecution also relied on Prosecution Submissions on Sentence dated

1 December 2021 (Exhibit B), Sentencing Advisory Council sentencing snapshots in relation to the charge of causing serious injury recklessly (Exhibit C), and Forensicare Report dated 18 January 2022, which I will receive and mark as Exhibit D in lieu of the marking of “F” it was given in the course of the resumption of the plea in mitigation of penalty.  In addition to the matters developed in oral argument, your counsel relied on an Outline of Submissions dated 29 November 2021 (Exhibit 1), and a Forensicare Report prepared by Dr Sam Pang dated

16 February 2020 (Exhibit 2).

3I have had very careful regard to all exhibited documents, as well as the matters addressed in the oral plea. 

Circumstances of the offending

4Your victim’s name is Faud SHEIK-ALI.  She was 48 years old at the time of your offending, and she resided in a high rise building in Flemington.  She had known you for several years, after she met you in Ascot Vale in 2005 when you were homeless.  She would sometimes see you in the foyer area of your Flemington residence, and described you as quiet, but you would ask her for cigarettes or some change from time to time, which she would provide to you.

5On Sunday, 18 March 2018 at about 2.30pm, she was at home in her flat and was about to cook when she heard a knock on the door.  When she opened the door, you asked if you could use her toilet.  She let you inside and allowed you to use her toilet, and you were there for about 40 minutes.  When you came out, she was sitting on the couch in her lounge room and you asked her for money.  She told you that she had no money because she was on a pension.

6You became angry and, as she was about to stand, you struck her in the head several times.  One of those strikes was so hard that her head hit the wall and she lost consciousness.  When she regained consciousness, you were still hitting her in the head and she could feel blood on her face.  You strangled her neck, and she thought that she was going to pass out again.  You caused her significant pain especially on the back of her head.  She managed to crawl to her bathroom and she locked the door and called 000.  She remained there until the police arrived at about 3.19pm on that day.  By that time, you had already left.

7Police attended and observed that she had facial and neck injuries, that her left eye was swollen, the bridge of her nose was cut, and there was a lot of blood.  There were marks on her neck area and blood stains on her jacket.  She was also having difficulty standing.  Ms SHEIK-ALI told the police that you had assaulted her.  There was blood splatter on the walls and the hallway, and a pool of blood on the floor.

8Police called an ambulance and your victim was transported to the Royal Melbourne Hospital. 

9The day following the incident, your victim was examined by a forensic medical officer, who diagnosed the following, very extensive injuries:

·        fractures to facial bones, including the right orbital wall, the right orbital floor, the bilateral maxillary wall and the right nasal wall;

·        bruising around both eyes (pre-orbital haematomas or black eyes);

·        bleeding over the whites of both eyes (sub-conjunctival haemorrhages);

·        a small bruise to the side of the right eye;

·        multiple scattered abrasions between 1-4 centimetres on the right neck area;

·        multiple scattered abrasions and scratch marks to the left neck area;

·        scattered abrasions to the left cheek and left side of the face;

·        scattered abrasions under the chin with associated scattered dark pigmentation;

·        .5 x .5 centimetre graze abrasion to the top of the left ear;

·        two parallel 1-2 centimetre scratch marks in the middle of the forehead;

·        left lower lip swelling with surrounding redness;

·        2 x 2 centimetre bruise on right inner elbow;

·        1 centimetre abrasion to right forearm;

·        2 x 3 centimetre bruise on left forearm;

·        2 x 1.5 centimetre irregular reddened patches of skin on both knees;

·        2 x 3 centimetre green/grey bruise on the left lower leg.

10In the opinion of the forensic medical officer, Ms SHEIK-ALI suffered a blunt force injury to most aspects of her body, and that the injuries indicated that there were multiple applications of blunt force trauma.  The periorbital bruising in the soft tissue around the eyes may have been caused by blunt force trauma or as a result of underlying facial or skull fractures, and there was evidence of blunt force trauma by raking or pressure applied to the delicate area of the neck which contains vital blood vessels, nerves and airway structures.

11Ms SHEIK-ALI spent five days in hospital and underwent multiple medical procedures.  She received tablets to relieve pain and nausea and required fluids and medications intravenously.  She was seen by multiple medical and surgical speciality teams, including emergency medicine, trauma, ophthalmology and maxillofacial surgery teams.  She stayed in hospital for five days, and then was discharged home with ongoing medical and surgical speciality follow-ups as an outpatient.  Fortunately, she did not require surgical input.  It was weeks before the bruising and swelling resolved and her external injuries healed, and it took weeks/months for the facial fractures to fully heal. 

12In addition to the physical injuries that I have described, Ms SHEIK-ALI has indicated that, as a consequence of your assault upon her, her vision was so affected that she has to wear prescription glasses at all times, and she still has a small scar on the bridge of her nose.  This is the offending referrable to your charge of recklessly causing serious injury.

Police investigation

13On 21 March 2018, police attended on Ms SHEIK-ALI at the hospital with a photo board, and she identified you as the person who assaulted her. 

14You were arrested on 26 March 2018 and, prior to interview, you were assessed by a doctor from the Victorian Institute of Forensic Medicine, who advised that you should not be interviewed for about six hours and should be allowed to sleep.  You were interviewed later in the afternoon on the same day after that period, and you told police that you did not have a stable place of residence.  You admitted that you knew the victim, and had been to her flat a few times.  You accepted that you had no issues or disagreements with her.  You accepted that you had visited her flat, but could not remember when.  You told police that you did not remember anything about 18 March 2018 nor seeing Ms SHEIK-ALI on that day.

15You told police that sometimes you have memory issues, and you do not remember after using drugs.

Plea of guilty and timing

16You were charged and on 6 March 2019 and, on 6 November 2019, you were committed to stand trial in this Court without having cross-examined any witnesses.  An issue of your fitness to plead was noted.  That issue then resolved, and the matter was listed for trial commencing on 9 November 2021.  I understand that in August 2020, you offered to plead guilty to the proceeding charge, but that plea offer was then rejected before being accepted by the prosecution some 12 months later. Approximately two weeks prior to your trial date, you were arraigned and pleaded guilty to the preceding charge. 

17I accept and take into account that your plea of guilty was offered at an early stage following your practitioner’s satisfaction that you were fit to plead, and was entered into the court’s records well prior to the court reaching the date for your trial. Your plea has saved the court, the witness and the community the time and expense of any cross examination, and attendance at trial.  This is of considerable significance in the current era, where the effects of the COVID-19 pandemic continue to linger upon the listing of trials.

18I mitigate sentence on these bases.

Personal circumstances

19This is unfortunately an unusual case in that you have been very reluctant to discuss your personal history, for reasons which will perhaps become more clear in my reasons for sentence. You were 36 years of age at the time of your offending and are now 40 years old.

20You were born in Somalia and were one of 13 siblings. I understand that your father was killed during the civil war and, when you were 10 years of age, you witnessed the murder of your best friend by Somalian militia.  You spent 12 months in a refugee camp and were in Nairobi for a year before coming to Australia when you were 14 years old.  You left home when you were 17.

21You have previously sustained injuries as a result of various assaults, and you have a past history of malaria.  You have previously tested positive for Hepatitis C. 

22You have declined to discuss your psychiatric history, but having read the two Forensicare reports available to me, as I understand it, prior to being remanded into custody, you had been treated at the Waratah Clinic, that is, the community clinic of inner west area mental health, and you had a past diagnosis of schizophrenia and antisocial personality disorder.  You have been admitted over 22 times to inpatient psychiatric units, and were predominantly a patient of the inner west area mental health services. 

23As best the Forensicare author could piece together the history, in 2002, when you were around 21 years of age, you experienced your first episode of psychosis with disorganised thoughts and persecutory delusions.  That diagnosis was later revised to a diagnosis of schizophrenia, possible Post-Traumatic Stress Disorder, and antisocial personality disorder.

24Your schizophrenia appeared typified by frequent admissions for psychotic relapses of schizophrenia in the context of substance use and medication non-adherence, despite the use of long-acting injectable depot antipsychotics, community treatment orders and intensive outreach teams.  When unwell, you were noted to have disorganised thinking, auditory hallucinations, persecutory delusions that you are being watched by people in passing cars, irritability and degression due to a feeling that you need to defend yourself.  Your most recent mental health order was in May 2016. 

25On 7 March 2018, you were discharged from case management at inner west area mental health service due to your poor engagement despite intensive outreach.  Your discharged medication was the long-acting injectable antipsychotic, Paliperidone Depot.

26In August 2019, whilst you were on remand for these offences, a psychiatric nurse reviewed you and noted that you were agitated, avoiding eye contact, dribbling uncontrollably, angry, labile, and stated a belief that officers were talking outside a room and sneaking up on you, consistent with paranoid delusions.  You were reviewed that month, and the psychiatrist’s impression was schizophrenia with residual negative symptoms and no psychotic symptoms, with comorbid substance use disorder and antisocial personality disorder traits. 

27You experienced auditory hallucinations during your Forensicare assessment in December 2019.  At that time, you were taking the medication Seroquel, and a long-acting injection, Paliperidone Depot, for a mental illness. 

28By February 2020, the diagnosis was chronic treatment-resistant schizophrenia with residual auditory hallucinations regarding devil people talking about you.

29That Forensicare assessor, Dr Sam Pang, considered that you had a diagnosis of schizophrenia, characterised by frequent psychotic relapses in the setting of variable medication adherence, cannabis and methamphetamine use, and the significant psychosocial stress related to your disorganised and erratic lifestyle that included homelessness, multiple addictions, difficult familial relationships and frequent offending with regular incarcerations.  When unwell, Dr Pang noted that you have disorganised thinking, auditory hallucinations, persecutory delusions that I have described, irritability and aggression.  You are known to have reasonable inter-episodic recovery and, when well, you have been described as being polite, easily engaged, forthcoming with information about your life, and able to discuss your mental health history.

30Dr Pang noted that your psychotic symptoms appear to have fluctuated considerably over the course of your incarceration. 

31Dr Katherine Tan, of Forensicare, assessed you in November 2021 for the purpose of this Sentence.  Dr Tan noted that the prison psychiatrist, Dr Kalluru, noted that you had been compliant with all your medication, and your mental state remained unchanged.  That is to say, chronic treatment-resistant paranoid schizophrenia.  You are currently prescribed Paliperidone Depot, 150 milligrams, long-acting injectable antipsychotic medication, Quetiapine, 150 milligrams, twice daily (an oral antipsychotic), and Benztropine (a medication to manage side effects from psychotropic medication).

32

Dr Tan notes that you have a history of polysubstance abuse, specifically use of amphetamine, methamphetamine and opiates.  You were reluctant to speak to

Dr Tan, as “people are listening in through the walls”.  Dr Tan confirms that your presentation and history are consistent with a diagnosis of schizophrenia, and also agrees that your presentation has historically been complicated by non-adherence with treatment and polysubstance abuse.  You also likely meet criteria for a substance use disorder, as evidenced by the impact of your drug use on your mental illness and social and occupational functioning.  You have reduced access to illicit and non-prescribed substances whilst in prison.

33In Dr Tan’s view, risk factors which are likely to increase your risk of re-offending include instability of mental state and any ongoing symptoms, non-compliance with treatment and supervision, return to substance abuse, lack of stable accommodation, lack of personal supports from family and friends, and other stressors such as legal, financial or social stressors.  She recommends that treatment be engaged to address these risk factors. 

34You have been compliant with treatment whilst in a structured prison setting, although you appear to have had difficulty with engagement whilst in the community due to the nature of your chronic enduring mental illness, polysubstance abuse and itinerant lifestyle. 

35In the course of your plea in mitigation of penalty, your counsel frankly accepted that owing to your reluctance to discuss any biographical information, or details of your medical condition with your legal representatives, that the evidence falls short of establishing a nexus that might enable me to undertake a more nuanced analysis of how, for instance, your childhood experience and circumstances and your medical condition might moderate or mitigate sentence under the proper application of the principles arising in cases like Bugmy[1] and Verdins.[2]

[1]Bugmy v The Queen (2013) 249 CLR 571.

[2]Verdins, Buckley and Vo (2006) 16 VR 269.

36In my view, this is unfortunate, as one might infer that the bare circumstances that I have heard of your childhood experiences would suggest difficulties that many other accused who face sentence may not have experienced, and associated trauma which has had lifelong effects. In my view, I can conclude that by reason of your mental health condition, the conditions of your sentence will weigh more heavily than on a person without that condition, and I mitigate sentence on that basis under Verdins.

37As discussed with counsel in the course of your plea, I am prepared to infer disadvantage and mental health difficulties that have endured throughout your life, and I am prepared to mitigate sentence in the application of mercy though the sparce detail does not permit me to use a more analytical approach such as the one applied in those cases.

38You have a criminal history dating back to 1999, comprising approximately 19 court appearances for significant offences.  Relevantly, you were placed on a Community Based Order in July 1999 upon guilty findings for offences including reckless conduct endangering serious injury.  That Community Based Order was later breached.  In December 2000, you were placed on a further Community Based Order for offences including possess regulated weapon and assault with a weapon.  You received a suspended sentence in September 2001 upon your conviction in this court for affray.  You were placed on a further Community Based Order in May 2003 for trafficking in cannabis, which was later breached, and a suspended sentence was imposed.  A further suspended sentence followed in October 2004 upon your conviction for offences including unlawful assault, intentionally causing injury, and recklessly causing injury. 

39Your first sentence of imprisonment was imposed in September 2008 for criminal damage and assault.  Convictions for drug offences followed in 2011 and 2013.  In November 2014, you were placed on a further Community Based Order for offences including property offences, assault police, assault with a weapon, and failing to answer bail.  A further sentence of imprisonment followed in June 2016, for offences including possession of amphetamines and property offences.  Further sentences of imprisonment followed in December 2017 and February 2018, for offences including property offences.  As submitted by the prosecution, this is not your first sentence of imprisonment for an offence of violence, albeit that those sentences may have been suspended in the past.  It would appear to represent an escalation from your previous offending.

Prospects for rehabilitation

40I am very cautious about your prospects for rehabilitation, in that I share the concerns of Dr Tan that your risks of re-offending are closely related to the instability of your mental state, the risk of non-compliance for treatment and supervision, the prospects of your returning to substance abuse, and your lack of stable accommodation and personal supports.  I intend to permit a long period of parole eligibility to allow for some supervision of your initial release, should you be found suitable.

Objective seriousness of your offending

41I accept without question the prosecution’s characterisation of the offence as being a serious example of the offence of causing serious injury recklessly.  Your victim was alone in her home at the time of the offence.  She had shown you kindness by agreeing to let you in to use her bathroom.  She was attacked without warning or provocation, and your attack continued after she lost consciousness.  You strangled her. Your attack showed ferocity and lacked mercy, in that you repeatedly punched her to the head with such force from one punch that her head hit the wall, and you caused her extensive and lasting serious injury.

Relevant sentencing principles, sentencing submissions

42I note and accept in mitigation of sentence a number of submissions that your counsel made in the course of the plea. 

43First, there has been a significant delay in the finalisation of the matter.  I infer that your time on remand has been unpleasant and difficult for you as a result of the types of things that you have described in passing to the Forensicare doctors, including that you feel a level of surveillance and I have mitigated sentence as I have previously indicated. 

44Secondly, as I have mentioned, your plea of guilty was entered at a time where the court system in Victoria was experiencing significant impediments as a result of the unfortunate effects of the COVID-19 pandemic.  Further, this virus has, unfortunately, recently entered the prison system.  There was significant utilitarian benefit in you entering a plea of guilty to the preceding charge and I have cited Worboyes.[3]  I take each of these circumstances into account in significant mitigation of the sentence that I would otherwise have imposed.

[3]Worboyes v The Queen [2020] VSCA 169.

45I take into account the purposes for which sentence must be imposed and the need for deterrence, both general and specific.  The sentence that I will impose will punish you and denounce your behaviour, in addition to allowing and emphasising your prospects for rehabilitation.  I am very conscious of the need for community protection.

46The prosecution submitted that the only appropriate sentence would be one of immediate imprisonment, with a head sentence and non-parole period.  That submission was sensibly accepted in principle by your counsel.

Sentence

47On the charge of recklessly causing serious injury, you are convicted and sentenced to a term of five years' imprisonment, with a minimum of three years and six months before parole eligibility.

48Were it not for your plea of guilty in this case, if you had proceeded to trial and been found guilty following trial I would have imposed a sentence of six years and three months' imprisonment with a minimum of four years and six months before parole eligibility.

49Could I please confirm Ms Coulson, pre-sentence detention?  Or Mr Hart, whoever can offer the number of days?

50MR HART:  Your Honour, it's my calculation that we're at 765 today, not including today.

51HER HONOUR:  Ms Coulson, would you like to take that date on notice, that length of time?

52MS COULSON:  That's correct, Your Honour, I have the calculation from the opening and I've done the maths for the time between the last plea hearing in December and now.

53HER HONOUR:  All right and so I had an earlier indication of 663, have another approximately 102 days passed?

54MS COULSON:  That's correct, Your Honour.

55HER HONOUR:  In that case I will record 765 days' pre-sentence detention excluding today.  From memory, Ms Coulson, there are no ancillary orders?

56MS COULSON:  That is correct, Your Honour.

57HER HONOUR:  Thank you, we will stand down until two this afternoon.

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