Director of Public Prosecutions v Mohamud

[2015] VCC 372

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01462

DIRECTOR OF PUBLIC PROSECUTIONS

v

NASRA MOHAMUD

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JUDGE:	HER HONOUR JUDGE COTTERELL
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	24 March 2015
CASE MAY BE CITED AS:	DPP v MOHAMUD
MEDIUM NEUTRAL CITATION:	[2015] VCC 372

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Bhai
For the Offender	Ms K. Shenstone

HER HONOUR: 

1Nasra Mohamud, you have pleaded guilty before me to three charges of criminal damage.  The maximum penalty for that offence is ten years' imprisonment.  You have pleaded guilty to one charge of making a threat to kill.  The maximum penalty for that offence is ten years' imprisonment.  You have pleaded guilty to two charges of arson, for which the maximum penalty is 15 years' imprisonment, and one charge of conduct recklessly endangering a person or persons, and the maximum penalty for that offence is 5 years’ imprisonment.

2The facts were opened by the prosecution and a summary of the prosecution opening was tendered as Exhibit A on the plea.  The facts in brief are that in the context of your separation and divorce from your husband, Sayeed Ante, and with your two daughters aged one and three living with his family, you believed that Mr Ante was monitoring you with infrared cameras and listening devices, and you believed that he appeared in your bathroom as a hologram.

3The offending to which you have pleaded guilty occurred on three separate days and due to mental health issues, you were not fit to be interviewed when you were arrested, and you required subsequent psychiatric treatment. 

4On 17 May 2014, you had attended the home of Mr Ante's mother, Isther Lyn Hassan, who was at home with another son, her two brothers and her mother.  Hearing screaming, yelling and smashing, she went to the front door and saw you with a tomahawk yelling, "Bring him out, bring him out", and smashing at the screen door with the axe.  You continued to yell and threaten that you would kill your husband.  Police were called, but by that time you had left the scene.  They are the facts behind Charges 1 and 2. 

5On 19 May 2014, you returned to the home of Isther Lyn Hassan, who was there with her son and two other people.  Your husband was again not present.  On hearing yelling outside her door, Mrs Hassan opened the inner door and you had already opened the security door.  You were again armed with a tomahawk and with a plastic bottle filled with fuel.  When Mrs Hassan opened the door you threw the fuel at Mrs Hassan and lit the material which you had with you and threw it inside the apartment, thus causing the fuel to burst into flames. 

6The doorway to the apartment caught fire.  Having used a bucket of water and then a fire hydrant, the flames were eventually extinguished.  The fire sprinklers, by that time, had also come on, and the occupants of the house fled.

7On that same day, 19 May, Sayeed Ante's aunt answered the door of her property to you and noticed that you had a tomahawk axe with you.  She had only met you once, many years before.  When the aunt, Thaeo Hassan, refused to come out and shut her door, you began swearing and yelling.  You then used the axe to smash glass window bricks and the metal security door, causing great fear to your husband's aunt.

8On 22 May 2014, you attended unoccupied premises at 18 Wyall Street in Brunswick West and attacked the door with an axe.  A neighbour came out and spoke to you and you said you were looking for an old man.  The neighbour repeatedly told you that nobody lived in the premises.  You eventually left.  About five minutes later, you returned and set fire to the premises and on investigation, a Molotov cocktail, that is a burnt plastic bottle with a wick, was located inside the premises damaged by fire.

9You were apprehended, as when you left the premises the first time, neighbours noted your vehicle registration number and they then identified your vehicle in which you attended to set fire to the premises as being the same one. 

10You were arrested and search warrants were executed at your property.  You were cooperative, you told the police that you were being monitored by your husband, that he was appearing as a hologram in your bathroom, and you were, as I said, assessed by a forensic medical officer as being not fit for interview at that time.

11You were remanded in custody and on your second application for bail you were released on 8 August 2014.  You subsequently failed to remain at court for a plea hearing on 22 October 2014.  You were arrested and remanded in custody until being bailed on 31 October 2014.  On 28 January 2015, you again failed to appear to at court for your plea hearing.  A warrant was executed on 4 February and you were remanded in custody on that date.

12By that time, there were serious concerns in relation to your mental health and your lack of insight into your required treatment, as when you were not in custody you were clearly failing to comply. 

13A report of Dr Nicholas Owens, consultant psychiatrist, was tendered as Exhibit 2 on the plea, and it appears that, by the time he prepared his report, you had been assessed by a Dr Mark Vella, the psychiatric registrar at the Marmak unit at Dame Phyllis Frost, who had been treating you whilst you were in custody.  His opinion was that you were suffering a first psychotic episode, with features of schizophrenia, and that you would need ongoing follow-up on your release from prison. 

14Dr Owens, in his report, confirmed that diagnosis, and recommended your ongoing treatment with anti-psychotic medication.  He further indicated that you needed engagement with public mental health services in order to have a case manager, a psychiatric registrar and a psychiatrist, who would meet with you on at least a weekly, or even more frequent basis, to ensure that you were taking your medication, that you were complying with the order and to provide support around other general issues from which you are suffering.

15The Court then requested a further report from Forensicare, and a report was prepared by Dr Carolyn Simms in order to explore your release, subject to a Community Corrections Order, as I had formed the opinion that you should not receive any form of custodial sentence, but you should be prepared for release into the community on an order.  Dr Simms recommended that as that was my intention, to impose a non-custodial sentence, you would need ongoing treatment with anti-psychotic medication.  Dr Simms expresses the opinion that you will need to continue treatment to prevent a relapse and you do accept that you must comply with your psychiatrist's advice regarding treatment.

16Dr Simms recommended that your ongoing treatment be facilitated by placement on a community assessment order, and that North West Area Mental Health Services would review that order and determine whether you can be placed on a temporary community treatment order. 

17Stella Louca, mental health social worker with the Marmak unit, provided a letter to the Court, which was tendered as Exhibit 3.  The letter indicates that a community assessment order has been completed by the Marmak unit and that will be faxed to the Harvester Clinic in order that an assessment can be made within 24 hours of you being released from court.

18Appointments have been made for you to facilitate the arrangement of appropriate community support and linkages for up to 12 weeks following your release, and you are to attend an appointment, as I understand it, at 2 o'clock this afternoon.  You have also been referred to ACSO Novo, a program designed to assist you with transition from prison back into the community. 

19

Your personal circumstances are that you have, following your offending, not had the care of your two daughters, and your aim is to have them back in your care as soon as possible.  Your personal history is set out in the report of

Dr Carolyn Simms dated 23 March 2015, which although requested by the Court, will become Exhibit G on the plea.

20In summary, you were born in Somalia and were adopted and taken to London to live with your adoptive family.  You reported physical abuse and punishment and an instance of sexual abuse at about the age of eight.  You were diagnosed with Attention Deficit Hyperactivity Disorder at the age of ten.  You came to Australia at the age of 13 with your mother and one of your brothers - she has six children in addition to you - and you found difficulty in adapting to the change in educational system and with the language, and you left school at 15. 

21You became an apprentice hairdresser and worked as a beauty therapist and hairdresser until you were 23.  You were unaware that you were adopted until you were about 16, as I understand it, and you have a problematic relationship with your mother at the present time.  You did have other appearances before the court during your teenage years and early twenties involving unrelated offending.

22You further reported considerable violence in your treatment during the time of your marriage, and that explains why you left the marriage and divorced your husband.  This decision has led to you being criticised by members of your community, however, I understand that you are now receiving more support from them and that you will take advantage of that when you are released. 

23Taking into account all those matters that I have just listed, and your very early plea of guilty, your immediate recognition of wrongdoing, your diagnosis with a psychotic disorder and your response to treatment when you comply with orders, I indicated that I would be releasing you on a community correction order, once I could be satisfied that your mental stability could be ensured ongoing.

24Having received the material that I now have, including the Forensicare report and the letter that I referred to from Stella Louca, I am satisfied that your psychotic illness was the direct cause of your offending, and that if you remain medicated your prospects for rehabilitation are good, and with that further material I am satisfied that your compliance and re-entry into the community can be guaranteed, provided you comply with the arrangements that have been put into place.  I note that you are now subject to the Mental Health Act, which should ensure that you remain compliant and in a good state of mental health.

25In addition to that, in relation to sentencing you, I have considered all the matters I am required to take into account by the Sentencing Act, where they are applicable to your situation.  I do not consider you an appropriate vehicle for general deterrence.  I consider your own deterrence will have been certainly achieved by the very unfortunate experiences you have had since you were taken into custody.  I believe that the protection of the community can best be ensured by you being returned to the community and having your mental health taken care of.

26I had you assessed in the first place for a Community Corrections Order and you have been found suitable, and I am satisfied that your ongoing stability can be ensured and therefore, if you would stand for me, I sentence you in relation to all of the charges to be subject to a community corrections order. 

27

The conditions of the order will be that you perform some community work, and I will make it 100 hours of community work.  I will make the order

18 months and you will also undergo treatment and rehabilitation in relation to your mental health - that will be ongoing the treatment that is already in place - and also that you attend any program that addresses factors related to your offending behaviour.  I am not sure what they will be, but that will be discussed with you.

28You will be under the supervision of a corrections officer and I want you to come back before me in late November of this year and I will have a report and find out how you are going and how you are going with getting your children back, et cetera. 

29So what you are required to is to attend the Broadmeadows Justice Service Centre in Dimboola Road, Broadmeadows, and you are to do that within two working days.  I note that you will be attending an appointment this afternoon in relation to your mental health issues.  Thank you.  Anything?

30MS BHAI:  Your Honour, given ‑ ‑ ‑

31HER HONOUR:  Yes, go on, yes.

32MS BHAI:  I was just going to ask Your Honour whether Your Honour had considered a further order in relation to treatment for - an assessment for drug abuse, given the previous screening from the urine and also any connection between her mental health and drug use.

33HER HONOUR:  Do you want to say anything about that?

34MS SHENSTONE:  I have no real - anything to say in relation to that, Your Honour. 

35HER HONOUR:  All right.  I will also order that you undergo some rehabilitation or counselling in relation to drug use.  I note that you are not a regular drug user, but it may have some connection with the mental health issues.  So I will order that as well.  The work - I don't know - did you want to say something?

36MS BHAI:  Your Honour, I was just considering ‑ ‑ ‑

37HER HONOUR:  So this is difficult because what I was thinking of doing was imposing a term of imprisonment and then making her serve the order following that releasing - being released and then doing the order, but in all the circumstance of the mental illness I do not think it is appropriate to impose that term of imprisonment. 

38MS BHAI:  Your Honour, I wasn't going to raise that.  The only other matter that I was going to raise with you was that Your Honour has suggested November.

39HER HONOUR:  Yes. 

40MS BHAI:  To come before Your Honour again.  I query whether a shorter timeframe may be more appropriate given the importance of compliance and especially initially. 

41HER HONOUR:  Well, I imagine if she does not comply she will be back before me anyway.  I am giving her a chance to see how she goes in the community and then I will get a report.  I know that she has ambitions to get her children back, and I am sure that will be a spur to compliance, and of course if - she is also subject to the Mental Health Act, and I imagine if there is any failure to comply, action will be taken. 

42MS BHAI:  As Your Honour pleases. 

43HER HONOUR:  So I am giving her that opportunity to see - let her settle in and get to see how matters proceed.  I have not - at this stage - I wanted to have submissions in relation to convictions.  I don't think I can without - I think to impose the community corrections order, I don't know whether it can be imposed without conviction. 

44MS SHENSTONE:  I understand that it can be imposed without conviction. 

45HER HONOUR:  All right.  But I am concerned about the seriousness of the offending, so I was really worried whether you were under any instructions to make submissions.

46

MS SHENSTONE:  I am not under any specific instructions, Your Honour.  

I do note that in 2010 she received a fine with conviction. 

47HER HONOUR:  Yes, so I will order that will be with conviction. 

48MS SHENSTONE:  I was just going to - is Your Honour able to confirm the date for the judicial monitoring?

49HER HONOUR:  We did, I thought we did.  No?

50MS BHAI:  Twenty-sixth of November. 

51HER HONOUR:  Twenty-sixth of November.  Yes, there is some difficulty in preparing the actual order so I will leave the Bench. 

52MS BHAI:  There was the orders that were sought in regards to the disposal on the forensic sample.

53HER HONOUR:  Have you handed those up?

54MS BHAI:  Yes, Your Honour.

55HER HONOUR:  I'll sign those.  The forensic sample, is that by - is that retention?

56MS BHAI:  No, Your Honour, it's the taking of a sample.

57HER HONOUR:  Do you want to say anything about that?

58MS SHENSTONE:  Your Honour, I did discuss this with Ms Mohamud earlier - a number of - two months ago, and there wasn't any opposition there.  All that I can say, Your Honour, in relation to this is that Ms Mohamud at the time of the offending, as Your Honour's noted, her mental illness was directly linked to the offending before the court, but I won't take it any further, Your Honour.

59HER HONOUR:  She would have to go to - no, I am going to refuse the order in relation to Ms Mohamud because she is somebody with other problems.  I don't think there is ever any - it is not as though she is going to be committing those sort of offences where she may be detected only by DNA, and for the sake of putting it on the database I do not intend to put her through the - what would I believe would be an ordeal for her - of attending the police station and having that sample taken.  I think that in view of her mental health it would not be appropriate, thank you.  So that is refused - that order is refused.  I will just sign the disposal order. 

60HER HONOUR:  Do you want those orders back?

61MS BHAI:  Thank you, Your Honour, yes. 

62(Short adjournment.)

63HER HONOUR:  I understand the order has been prepared, have you had the chance to ‑ ‑ ‑

64MS BHAI:  Thank you. 

65HER HONOUR:  Thank you.  I've now signed that and if you would sign it too please, Ms Mohamud. 

(Community-based order signed and acknowledged.)

66HER HONOUR:  Thank you.  I think that completes the matter.  That should be sufficient to get her out of custody.  Thank you, Ms Mohamud, and I wish you well on your order.  Thank you. 

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