Director of Public Prosecutions v Nhial
[2020] VCC 337
•25 March 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No CR-19-00849
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ZYAL NHIAL |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 March 2020 | |
DATE OF SENTENCE: | 25 March 2020 | |
CASE MAY BE CITED AS: | DPP v Nhial | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 337 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Plea of guilty – One charge of attempted armed robbery – Summary charges of unlawful assault and trespass – Offender suffers from PTSD and schizophrenia – Offender’s symptoms were exacerbated by synthetic cannabis ingested before the offence – No prior history of violent offending – Verdins principle five applies – Very good prospects of rehabilitation.
Legislation Cited: Crimes Act 1958, Summary Offences Act 1966, Sentencing Act 1991.
Sentence: Imprisonment for a period of 501 days together with a Community Correction Order for a period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D Caruso | Office of Public Prosecutions |
| For the Accused | Mr R Keating | Slink & Keating |
HIS HONOUR:
Introduction
Zyal Nhial, you have pleaded guilty to one charge of attempted armed robbery contrary to s 321M and s 75A of the Crimes Act 1958 which carries a maximum penalty of 20 years imprisonment (Charge 1).
You have also pleaded guilty to two related summary charges: Charge 5, unlawful assault contrary to s 23 of the Summary Offences Act 1966, which carries a maximum penalty of 3 months imprisonment or 15 penalty units; and Charge 6, trespass contrary to s 9(1)(e) of the Summary Offences Act 1966, which carries a maximum penalty of 6 months imprisonment or 25 penalty units.
You have also admitted your prior Criminal Record.
Circumstances of the offending
A prosecution opening was tendered on the plea and may be summarised as follows:
On 10 November 2018, you were in Fox Street, Dandenong. The victim in this matter, Mehrab Jamali, was on the footpath outside his home in Fox Street.
Just before 11pm, the victim noticed you on the footpath and he began walking towards his home. The victim heard a noise and turned towards you. He noticed that you had a long knife in your right hand. Whilst pointing the knife at the victim you said: ‘Give me everything or I’ll kill you’. You were holding an open bag while you were saying this. The victim called out to his friend for help. A dog began to bark which distracted you. The victim then ran into his home. It is these facts that relate to Charge 1, attempted armed robbery.
You then followed the victim into his home and you both went up the stairs. The victim was calling out to his housemate to call 000. It is these facts that relate to summary Charge 6, trespass.
At the top of the stairs you and the victim began to struggle. You both then fell down the stairs. At the bottom of the stairs you kneed the victim to the face. It is these facts that relate to summary Charge 5, unlawful assault.
The victim’s housemate had called 000 and police arrived at the scene just after 11pm. Constable Brady and Senior Constable Maloney observed you with a long thin object in your hand which had the appearance of a knife.
Constable Brady called out to you and you started to run. Constable Brady then commenced a foot chase along Fox Street, McCrae Street and the Dandenong Creek Trail. You ran across the creek and onto St Mary’s Oval. Constable Brady eventually caught up to you and you collapsed onto the ground.
Other police attended and you were arrested after you initially resisted being handcuffed.
You were transported to the Dandenong Police Station where the informant attempted to interview you. The informant observed that you were behaving erratically and appeared delusional and therefore requested that a Forensic Medical Officer be called to examine you. Dr Moynihan attended at the station and deemed you not fit to be interviewed. You were remanded in custody.
The victim stated that he had bruises to his face and a sore left knee from the incident. He was upset and scared. After the incident the victim saw a doctor who described the injuries to his knee as mild.
Nature and gravity of the offending
Attempted armed robbery is a serious offence which is reflected in the maximum penalty of 20 years imprisonment. In this particular instance, you were carrying a long knife in your hand and made a demand of the victim together with a threat that you would kill him if he did not comply.
Having read the materials in relation to your psychiatric and psychological background, you stated that on the evening of the offending, you had recently consumed synthetic cannabis which caused you to be delusional and paranoid. Your condition was also observed by the arresting police officers and you were ultimately assessed as being unfit to be interviewed as a result. In all the circumstances, the state you were in, together with the fact that you were carrying a knife, demanding property and making a threat to kill would in my view have been an incredibly frightening experience for the victim.
However, the experience for the victim did not end there. You followed him home into his property as he was calling out to his housemate to contact 000 for assistance. Once in the premises, you then began to struggle with the victim causing you both to fall downstairs and then ultimately you kneed the victim to his face.
The whole event can only be viewed as serious and Charge 1 on the indictment is also in my view a serious example of this type of street attempted armed robbery. While the physical injuries to the victim were relatively minor there can be no doubt, from the circumstances presented together with the contents of the victim impact statement of Mr Jamal, it is clear that he was significantly traumatised which has had a lasting effect on him.
In his victim impact statement, Mr Jamal states that he lost two weeks of work following the assault which caused a financial impact on him and his family. He has become hypervigilant, not going out at night and being fearful in social situations. In the initial stages, he notes that his sleep was greatly affected.
I have taken the contents of the victim impact statement into account.
Personal circumstances
You are 28 years of age and were 27 at the time of the offending.
You were born in Sudan and came to Australia when you were 11 years of age as a refugee, via Egypt. You are the fourth oldest of six siblings. You have described what was a traumatic early life in Sudan as result of the war and the family’s experience when fleeing from the war.
You attended primary school in Egypt. After settling in Australia, you completed Year 12 at St John’s Catholic College in Dandenong and it would seem you have consistently been in work up until about eight months prior to your arrest. Your employment has mainly been in labouring jobs and in warehousing logistics.
One of your brothers suffered a serious brain injury following a car accident in 2012 and you had an active role as a carer for him until your arrest. You have also worked as a community volunteer with teenagers who had become involved in gangs in Melbourne.
You were in a long-term relationship for approximately five years and were in another relationship which ended shortly before your recent arrest. In more recent times your parents separated however your mother remains very supportive and attended Court during the plea hearing. She has indicated that you are able to live with her upon your release.
As to your substance abuse history, you state that you only drink occasionally however your use of other drugs has been more problematic. You have been using cannabis since you were 18 years of age, smoking on a daily basis. You have tried ice but did not like it. On the day of the offending you had taken synthetic cannabis which you described as like ‘a hundred bongs in one’.
A number of reports were tendered on the plea that described in various ways your psychiatric history and the state you were in at the time of the offending. Dr Rajan Darjee, consultant forensic psychiatrist, prepared a report at the request of the Office of Public Prosecutions when the issue as to whether you had a mental impairment at the time of the alleged offending was still being determined. Dr Darjee describes your psychiatric history, noting that you reported that you suffered from flashbacks and nightmares related to your early life in Sudan. He noted that you had not received any psychiatric treatment until about two weeks prior to your arrest.
Having assessed you, Dr Darjee confirmed a diagnosis of post-traumatic stress disorder (PTSD) due to the trauma you experienced in the war and while fleeing from Sudan. You suffer nightmares, flashbacks, fear and aversion to cues which act as reminders. However, he notes that PTSD is not relevant to the alleged offending.
Dr Darjee also records that you have developed a psychotic illness characterised by auditory hallucinations and precursory delusions. He is of the view that you had developed some of these symptoms before the alleged offences, however they appear to have been particularly serious and acute after you took synthetic cannabis some hours before the incident occurred. He concludes ultimately that now that you are not using cannabis of any kind, your symptoms have nonetheless continued but are less frequent. Nevertheless, in his view the appropriate diagnosis is schizophrenia.
What does appear to be clear from the reports, and your own self reporting of your use of synthetic cannabis, is that any symptoms you may have been suffering at the time of the offending were exacerbated by the effects of the synthetic cannabis. In Dr Darjee’s view, the direct effects of intoxication of the synthetic cannabis made a major contribution to the acuteness of your symptoms at the time. He notes that had you not taken that substance, you would not have been acutely unwell and affected by those symptoms. That said, he is also of the opinion that if the victim and witness accounts are accepted, then psychotic symptoms did not drive or determine your behaviour on the night.
Since being in custody you have received assistance with your psychiatric conditions, including regular visits by a psychiatric registrar and appropriate medication. It has been reported recently that you are mentally stable at this point and compliant with your medication regime. You are working in the prison system, interacting well with other prisoners and there have been no behavioural issues in custody.
The view of the intensive case manager at Forensicare, Amanda Rees, who has dealt with you over a long period, is that you would benefit from psychological support when you are released into the community in order to deal with your traumatic history.
Relevant sentencing considerations
This matter came before me as a sentencing indication hearing in circumstances where you have been on remand for some 15 months. As such, the sentencing indication hearing was focused on whether there would be an immediate term of imprisonment imposed over and above that which you have already served. Having read the material and heard submissions, I formed the view that if you were to plead guilty to the offence on the indictment, the court would not be likely to impose a sentence of imprisonment that commences immediately.[1]
[1] R v McLaughlin [2016] VSC 85, a sentencing indication ruling where T Forrest J stated that ‘a sentence of imprisonment that commences immediately’ must be taken mean imprisonment from the time of sentence and extending into the future.
While your plea of guilty is relatively late in the proceedings, there has been a significant delay as a result of the assessment of your psychiatric situation. You did not run a contested committal and before you were committed for trial, you were assessed as to your fitness to plead and whether or not you had available to you a mental impairment defence. You were committed for trial on 1 May 2019. The matter was then adjourned a number of times through 2019 in order for there to be further assessment in relation to whether or not you qualified for a mental impairment defence. Ultimately, the matter came before me for the sentencing indication hearing and plea on 18 March 2020.
In all the circumstances, in my view your plea of guilty should still be given weight. You did not conduct a contested committal and as such you have not subjected the victim in this matter to cross examination either at a committal hearing or at a trial. Your plea of guilty has also saved court time and expense and has therefore facilitated the course of justice.
The primary focus at your plea was in relation to your mental health and whether or not Verdins considerations have application in relation to reducing your moral culpability and moderating general deterrence. Without repeating the matters referred to above in relation to the psychiatric assessments, in my view those principles do not apply in this instance as a result of any impaired mental functioning. It is clear from all the materials, that your behaviour on this night was significantly contributed to by the fact that you had ingested synthetic cannabis.
That said, it is also clear from the materials that you suffered from PTSD and other psychotic symptoms before the alleged offending. As such I take those matters into account in the general synthesis.
Verdins principle five does however have application in this instance as your mental health issues have made some aspects of your time on remand more difficult.
General deterrence remains the primary sentencing consideration in this instance. People are entitled to feel safe walking down their own streets without being attacked and threatened in the way that you did on this occasion. A message must be sent that there will be consequences for those who engage in such conduct.
You have some prior criminal history however you do not have any prior history of violent offending. Your prior history relates to driving and dishonesty offences and you have not received a term of imprisonment in the past. Further, since being in custody it appears that you have been able to avail yourself of the assistance offered which has included counselling and support by psychiatric registrars and monitoring of your medication regime to the point where you are now stable. In the circumstances, in my view specific deterrence need not weigh heavily in the sentencing equation.
It was conceded by your counsel, sensibly in my view, that the 15 months that you have spent in custody has actually had a positive effect on you. For the reasons already mentioned in relation to the support you have received, it seems that you are now ready to enter the community, however you do need ongoing support to deal with your long-term psychiatric issues and your PTSD. You have had a stable work history and enjoy the continued support of your family, most particularly your mother. Thus, in all the circumstances in my opinion if you are able to maintain control of your psychiatric and psychological issues, your prospects of rehabilitation are able to be assessed as very good.
As noted, you have served some 15 months on remand in relation to this incident and in all the circumstances in my view that is a sufficient prison sentence in relation to Charge 1 on the indictment, attempted armed robbery. However, I am also of the view that you would benefit greatly from ongoing treatment and rehabilitation programs in order to address your drug use, your mental health issues and your offending behaviour. As such I had you assessed for a community correction order and you have been assessed as suitable.
Sentence
Mr Nhial, please stand.
Zyal Nhial, on Charge 1, attempted armed robbery, you will be convicted and sentenced to 501 days imprisonment not including today, the intention being that you have already served that period of imprisonment.
As such, pursuant to s 18 of the Sentencing Act 1991, I declare that 501 days be reckoned as the period of imprisonment already served under the sentence I have imposed, that does not include today.
On summary Charge 5, unlawful assault and summary Charge 6, trespass, you will be convicted and placed on a community correction order for a period of two years. While all community correction orders are punitive, the focus of the order will be therapeutic. The order will contain treatment and rehabilitation conditions relating to drug use, mental health and offending behaviour. You will also be subject to supervision.
Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty I would have sentenced you to a period of 2 years imprisonment with a non parole period of 14 months.
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