Director of Public Prosecutions v Nomarhas
[2021] VCC 1215
•26 August 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-00522
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TASI NOMARHAS |
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JUDGE: | His Honour Judge Hannebery | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 May & 19 August 2021 | |
DATE OF SENTENCE: | 24 & 26 August 2021 | |
CASE MAY BE CITED AS: | DPP v Nomarhas | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1215 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Recklessly causing serious injury; damaging property; negligently dealing with proceedings of crime; very serious example of a serious offence; plea of guilty; COVID-19 pandemic; delay
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:Ashdown v The Queen [2011] VSCA 408
Sentence: Total effective sentence of four years and six months and I order that you are to serve a period of three years and three months before becoming eligible for parole.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr C. McConaghy | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr J. McQuillan | Greg Thomas Barrister & Solicitor |
HIS HONOUR:
Introduction:
1Tasi Nomarhas, you have pleaded guilty to:
(a) One charge of recklessly causing serious injury contrary to s 17 of the Crimes Act 1958, the maximum penalty for which is 15 years' imprisonment;
(b) One charge of damaging property contrary to s 197 of the Crimes Act 1958, the maximum penalty for which is 10 years' imprisonment; and
(c) One charge of negligently dealing with proceedings of crime contrary to s 194(4) of the Crimes Act 1958, the maximum penalty for which is 5 years' imprisonment.
Summary of Offending:
2The Summary of Prosecution Opening was tendered[1] and read aloud in court. In short:
[1]Prosecution Exhibit 1.
3The victim in this matter was a 47-year-old woman. You had known her for a long time, having attended school with her. At the time of the offending, she considered you a friend but was not involved in an intimate relationship with you.
4On the afternoon of Saturday, 15 September 2018 you attended the victim's address in Thomastown. You assisted her with some gardening at her premises, until around 6 pm when you both went inside her house for dinner. You later went to the lounge room where it was planned that you would both watch football on the television.
5The victim's television set-top box was damaged, and you were unable to watch the football. You tried to repair the device but were unsuccessful. After an attempt to get the device working on a second television, you and the victim were seated on her bed, fully clothed and talking.
6Whilst there, you began making advances on the victim which included the groping of her breasts. The victim told you to stop and you did. You had a further discussion before you invited the victim to come back to your mother's house in Thomastown. The victim said to you that she accepted this invitation. A short time later a taxi arrived at the victim's address.
7You got into the taxi. At this time the victim told you that she was not going to get into the taxi and go with you to your mother's house. She attempted to re-enter her house. You got out of the taxi and followed her. You were angry. You yelled at her, demanding to know why she would not go with you.
8At about 3.55 am on 16 September 2018, the victim walked backwards through the front door of her home. You rushed at her and head-butted her on at least five occasions. On each occasion, you connected with her nose and this caused immediate pain and heavy bleeding from her nose. This was the commencement of the conduct comprising Charge 1, recklessly causing serious injury, but there were further acts of violence covered by this charge.
9After the head butts, the victim screamed for help. She began feeling faint. You forced the victim backwards through her kitchen. Once there, the victim let her dog in from the backyard. The dog entered and leapt towards you. You armed yourself with a knife to protect yourself against the dog. The victim intervened to push the dog aside.
10The assault on the victim continued after that. You punched her multiple times to the face, on some occasions using an open hand. The punches caused her to fall to the ground in her kitchen. She says that after falling to the ground, 'everything went black; I was starting to feel quite unwell'.
11While the victim was lying on the floor of the kitchen, you lent over her and commenced to strangle her using both of your hands. You squeezed her throat and caused her to drop in and out of consciousness. The victim states that she thought she was going to die. Whilst you were strangling her, you were screaming 'I'll kill you the same way Kon killed Jackie'. This was a reference to a murder that occurred in Preston in 2011.
12You then stepped away from the victim. This is the conclusion of the conduct comprising Charge 1.
13You went to the power box located immediately outside the front door of her house. You smashed open the power box and switched off the power to the home. This left the victim in complete darkness. Despite this, she made her way to the bathroom of the house. Whilst there, she was able to wedge a pair of scissors under the door in an effort to prevent your return and the recommencement of the assault.
14You re-entered the house. You went into the lounge room and kitchen where you smashed windows in both of those frames. The damaged caused by you on this occasion is the subject of Charge 2, damaging property.
15You then left the address. The victim sought help some hours later from her neighbours, who then called for assistance.
16
You were arrested for an unrelated matter at 8.33 am on the morning of
16 September 2018. At that time, you were searched by police and it was discovered that several items of jewellery belonging to the victim were in your underpants. Your dealings with this jewellery is the subject of Charge 3, negligently deal with the proceeds of crime.
17
The assault on the victim was reported to police at 12.48 pm on
16 September 2018. Shortly after this, the victim was transported to hospital and treated for injuries that included a fractured left cheekbone, a fractured left eye socket, a fractured left sinus, lacerations and bruising to her throat, and a loss of a sense of taste.
18She was required to undergo surgery to correct fractures and plastic surgery to repair lacerations sustained during the assault.
19You were arrested in relation to this matter at 2.35 pm on 16 September 2018. You were interviewed and told police the following:
(a) You claimed that the brooch in your possession belonged to your mother. You said that the rings in your possession had been found by you in Thomastown, and another had been given to you by your grandfather;
(b) You admitted going to see your friend, the victim, and said that an argument had occurred between the two of you. You claimed this argument was because the victim wanted to use drugs and that you did not;
(c) You said that in the course of this argument you pushed the victim to the face. You said that this caused her to bleed from the nose. You denied head-butting her or punching her;
(d) You told police that you had sex with the victim the previous night and that you believed she might be pregnant;
(e) You said that the injuries observed on your face and arms were sustained while you were helping your mother in the garden;
(f) You admitted that during the argument you punched the victim to the face;
(g) You admitted smashing the windows inside the house.
Impact on the Victim
20
The impact of a crime upon the victim is a matter to be taken into account pursuant to s 5 of the Sentencing Act 1991. Moira Gangsar provided a victim impact statement[2] that was read aloud in the course of the plea hearing by the prosecutor. The prosecution also tendered a letter from Dr Simon Wilson dated
18 March 2021[3] which outlined Ms Gangsar's medical history post the offending.
[2]Prosecution Exhibit 2.
[3]Prosecution Exhibit 3.
21Since the assault upon her by you she has lived in fear and has nightmares. She has depression, anxiety, and post-traumatic stress because of your actions. She still gets headaches related to the physical injuries you inflicted. Her eyesight is still impacted. Her breathing is impaired by the fracture to her nose.
Gravity of Offending
22The conduct covered by Charge 1, recklessly causing serious injury is, in my view, a very serious example of a serious offence. You committed a completely unprovoked attack on a woman in a vulnerable position in her own home, where she was entitled to feel safe. Your conduct represented a gross breach of the trust she placed in you as a friend by her invitation to you to attend.
23I have determined that your conduct was triggered by sexual rejection. Whilst you have instructed the psychologist, Ms Cidoni, that you were under the influence of drugs, including 'ice', it is unclear what, if any, role this played in the assault.
24The offending itself was far from a single act. It comprised an initial attack involving multiple head butts to the victim's face. You followed up the head butts with multiple punches to the victim's face.
25A final portion of the assault involved strangling the victim to the point of unconsciousness whilst she was already on the ground. This was accompanied by an unambiguous threat that was chilling in its nature.
26While I must be conscious not to sentence you for an offence with which you are not charged, the threat is part of the context in which the injuries were inflicted. It added to the psychological distress endured by the victim who had done nothing that day but show you friendship and hospitality.
27The physical injuries you inflicted, whilst not life threatening or catastrophic in nature, are substantially beyond the threshold of what might be considered 'serious'. The victim endured multiple surgeries and reports ongoing physical symptoms. She has also described ongoing psychological distress from the trauma you caused.[4]
[4]Prosecution Exhibit 3.
28Returning to the house to smash the windows caused a relatively modest financial loss for the repair but added further suffering to the victim's experience.
29Charge 3, negligently deal with the proceeds of crime, by its nature, an offence of minimal moral culpability. The legislation creates three offences for those who deal in property that is proven to be the proceeds of crime, in this case stolen property. You are not charged with knowing that the property in your possession was stolen, nor even that you were reckless as to that fact by being aware of a substantial possibility that it was stolen.
30Despite what may seem to be a somewhat artificial factual matrix, you are to be sentenced on the basis that you did not even hold a belief as to the reasonable possibility that the property was stolen. Rather it is put that you have fallen short of the actions that a reasonable person would have taken to determine whether the property was the proceeds of crime and, in that way, you are criminally negligent.
31You are not, however, to be sentenced on the basis that you were either the thief or the handler of property known by you to be stolen.
32In these circumstances, the gravity of the offence relates to firstly, the volume of the property said to be the proceeds of crime and secondly, the level of negligence displayed by your conduct. An analysis of both of those criteria in this case means that the penalty for that charge must be modest.
Personal Circumstances
33You are now 50 years old. The offending occurred when you were 47 years old. You were born in Victoria and raised by your parents in Thomastown. You have one older sister and two older brothers. Your sister passed away from cancer in 2003. Your father died in 2014.
34One of your brothers is divorced with two children. Your other brother is a heroin user who has been in gaol previously and is someone you described as a bad influence on you.
35You had a stable childhood and a good relationship with your parents. You were educated at Lalor East Primary School and Northcote Technical School before undertaking a vocational skills-based program for Year 12 at Collingwood College.
36You completed 18 months of an electronic engineering course before being incarcerated in 1994 for drug-related offending. You have not maintained significant periods of employment for the bulk of your adult life. You have been on a disability pension for the last 10 years.
37You began using cannabis at the age of 14. You commenced the intravenous use of heroin at age 16 after being introduced to the drug by your older brother. Your use of heroin continued for more than two decades until 2014.
38You have been on a methadone program for the last three years, and before that you were prescribed Suboxone to deal with your opiate problems. You instruct that these treatments have enabled you to stay off heroin. However, to some extent, heroin has been replaced with your use of 'ice'.
39Your life of drug addiction is reflected in your prior criminal history. You have previously been sentenced to 28 terms of imprisonment. As your counsel noted, however, up until your current period of remand, the longest sentence you ever served was a period of 14 months. Your prior offending comprises mainly repetitive offences of dishonesty dealt with in the Magistrates' Court. Whilst you have got prior convictions for matters such as assault with intent to rob, assaulting company, intentionally cause injury, unlawful assault and robbery, you have never before been dealt with for an offence involving the infliction of serious injury.
40You have lived with your mother all your life, save for those periods of incarceration. You lost one partner tragically to a road accident in the 1980s. You have one daughter from a later relationship, but your contact with her is intermittent. You are not currently in a relationship. You are, however, in regular contact with your mother and brothers. You intend to return to reside with your mother upon your release from custody.
41
Tendered on your plea was a psychological report prepared by Gina Cidoni.[5]
Ms Cidoni concluded that you presented with low intellect based on testing of various skills. She concluded that you are currently suffering from post-traumatic stress disorder (PTSD), with persistent depression and generalised anxiety disorder, as well as chronic substance use disorder. The PTSD does not appear to be sourced from one specific event, but rather from the array of tragic events that have befallen your adult life, including your involvement in six separate car accidents.
[5]Defence Exhibit 2.
42I accept that because of the PTSD with symptoms of depression and anxiety that imprisonment presents a greater burden for you than for somebody who does not suffer these conditions.
Plea of Guilty
43You pleaded guilty to the offences on the indictment on what was, in effect, the first day of the trial. Whilst your plea of guilty could be said to have occurred late in the proceedings, there is still some utilitarian worth in the fact that you spared the time and resources that would otherwise have been expended on that trial. It is also significant that you pleaded guilty and spared the victim the stress of giving evidence, though it should be noted that she was required to give evidence at a contested committal hearing.
44Your plea of guilty, in combination with your statement to Ms Cidoni that you feel 'extremely bad' about your behaviour, shows that you have some level of remorse, though not what could be complete contrition. Your accounts to the police in your interview and then to Ms Cidoni in your consultation with her are, at most, partially truthful.
Delay
45This offence was committed on 16 September 2018. You were arrested only a few hours later. Despite this, the matter is now being concluded almost three years later. Whilst the fact that you were until recently contesting the charges against you does explain some portion of that delay, a far greater portion was directly attributable to the disruption caused to the justice system as a result of the pandemic. I accept that the elongated period during which these matters have remained unresolved and your future uncertain amounts to a level of punishment in itself.
Impact of COVID-19
46The period of time you have served in custody since March 2020 has been made more onerous because of pandemic restrictions on the prison environment, including but not limited to restrictions on visits and educational programs. Restrictions of some level will persist for the foreseeable future and that will make imprisonment more burdensome than it would be otherwise.
Risk of Re-offending and Prospects of Rehabilitation
47You are now 50 years old. You have served almost three years in custody on remand. Your criminal history shows ongoing recidivism. You have long-standing drug issues.
48You still retain family support and have the stability of accommodation with your mother awaiting you upon release. You have had some success in addressing your heroin dependency with the use of opiate substitute treatments.
49Ms Cidoni assessed your re-offending risk with regard to family violence offences to be medium, due to the nature of the assault, your prior history, and your substance abuse. She also expressed concern about the risk that you may become institutionalised.
50Your future depends your ability to remain drug-free. Whilst the challenges you face in achieving this are self-evident, your situation is far from hopeless. I assess your prospects of rehabilitation to be guarded. There is however scope for them to improve if you engage with necessary treatment for substance abuse and appropriate psychological treatment for your mental health issues.
Sentencing Principles
51Mr McQuillan referred to what statistical analysis shows to be median length sentences for the offence of causing serious injury recklessly in recent years.
52
Mr McConaghy referred me to several cases where the courts have sentenced offenders for recklessly causing serious injury, in what might be broadly considered circumstances of domestic violence where no weapon was used.
Mr McConaghy made particular reference to the case of Ashdown v The Queen[6] to show that, despite the absence of a weapon, offending that involves a series of strikes to the victim will necessarily increase the seriousness of that offending.
[6]Ashdown v The Queen [2011] VSCA 408
53The statistics and the comparable cases have some utility as to the broad guideposts that exist when imposing sentences for such matters. Direct comparison between cases is, however, a very difficult task given the unique array of competing factors evident in each individual case.
54I consider this matter to be a very serious example of the offence of recklessly causing serious injury. Whilst it is not at the absolute upper end of the range it is, in my view, substantially beyond what might be called a mid-range example of the offence.
55I need to impose a sentence that deters others from similar offending and also specifically deters you. I must denounce your conduct. I must have regard for the protection of the community. I must impose a sentence that is just in all the circumstances, having regard for the gravity of the offending. I must also consider your prospects of rehabilitation.
56I must impose a sentence that imposes penalties appropriate for the individual charges and is structured in such a way as to produce a total effective sentence reflective of the entirety of the criminality dealt with on the indictment. I will also have some regard for the fact that you have completed a 60 day term of imprisonment during your time on remand.
Submissions on Sentence
57Mr McConaghy, on behalf of the Director, submitted that the only appropriate sentence was a period of imprisonment with a head sentence and a non-parole period.
58Mr McQuillan, on your behalf, conceded that such a sentence was unavoidable; however, submitted that the sentence imposed should not be crushing in length and should be structured in a manner such that the parole period represented a higher proportion of that sentence than might be considered usual.
Sentence
59Mr Nomarhas, you are sentenced as follows:
60On Charge 1, recklessly causing serious injury, you are convicted and imprisoned for four years and six months;
61On Charge 2, damaging property, you are convicted and imprisoned for three months;
62On Charge 3, negligently deal with the proceeds of crime, you are convicted and imprisoned for one month.
63This makes for a total effective sentence of four years and six months.
64I order that you are to serve a period of three years and three months before becoming eligible for parole.
65Pursuant to s18(4) Sentencing Act 1991, I declare that you have served a period of 1013 days of pre-sentence detention to be reckoned as already served.
66I declare pursuant to s6AAA Sentencing Act 1991, that but for your of guilty, I would have imposed a sentence of five years and three months with a four year non-parole period.
67Are there any other orders required beyond adjourning those - if I adjourn the summary matters to a mention date, when would it suit for that, Mr McConaghy? Next week some time?
68MR McCONAGHY: At your convenience, Your Honour. I would probably sit a few days.
69HIS HONOUR: A few days, all right. Is this afternoon possible or is that putting too much pressure?
70MR McCONAGHY: Yes, Your Honour, it is not possible because my instructing solicitor is not available.
71HIS HONOUR: All right. All right, we will make it - I will make it early Friday morning? Can we do Friday morning? I will see if I can make it - I have got something on Friday, but I will do it at 9.30. All right, I am just being told I do not think my sentence can be finalised for these charges today, with those matters outstanding.
72MR McCONAGHY: Your Honour, I am sure this is only going to be a 24-hour turnaround - perhaps Thursday morning then.
73HIS HONOUR: Yes, all right. Well, we will do it on Thursday morning. And look, I can say this, that nothing you tell me is going to change.
74MR McCONAGHY: Yes, Your Honour.
75
HIS HONOUR: The total term that is imposed. So, yes, I will just wait. Let us get a new date and I will order. All right, we will say Thursday, 9.30 am. So,
Mr Nomarhas, we have just got to finish off - there is a couple of summary charges that just need to be finalised, that we will do 9.30 Thursday morning. But broadly speaking, you know what you are getting now, all right?
76OFFENDER: Thank you.
77HIS HONOUR: All right. Anything further, Mr McQuillan?
78MR McQUILLAN: No, Your Honour. As Your Honour pleases.
79HIS HONOUR: Thank you, all right. I will adjourn the court until 10.30 tomorrow, thank you. Thanks both of you for your assistance.
80MR McCONAGHY: If it please Your Honour.
(At a later stage).
81HIS HONOUR: So, Mr Nomarhas, just to confirm the sentence, the sentence is:
82On Charge 1, causing serious injury recklessly, you are convicted and imprisoned for four years and six months.
83On Charge 2, damaging property, you are convicted and imprisoned for three months.
84On Charge 3, negligently deal with the proceeds of crime, you are convicted and imprisoned for one month.
85This makes for a total effective sentence of four years and six months. I order that you are to serve a period of three year and three months before becoming eligible for parole.
86Pursuant to s18(4) of the Sentencing Act 1991, I declare that you have served a period of 1015 days - that is the adjustment I will make - of pre-sentence detention to be reckoned as already served, so that is counting up to today.
87I declare, pursuant to s6AAA of the Sentencing Act 1991, that but for your plea of guilty, I would have imposed a sentence of five years and three months, with a four year non-parole period.
88I will mark those Summary Charges 5 and 9 as withdrawn, and I will remit Charge 7 to the Magistrates' Court and adjourn it for a mention in the Magistrates' Court on a date that will pop up on my screen in a minute. I will get that date now before we drop off the link.
89MR McQUILLAN: Thank you.
90HIS HONOUR: Sorry, Mr McConaghy, I know - I did not mean to make it a personal to you. I will just - - -
91MR McCONAGHY: Your Honour, I understood completely.
92HIS HONOUR: All right. And given that it is online, it should almost be able to do it straight away, should it not?
93MR McQUILLAN: Yes.
94HIS HONOUR: Just swap the link to the Magistrates' Court and get it dealt with there.
95MR McQUILLAN: Usually get a date in the next few days, I think, Your Honour, that has been my - - -
96HIS HONOUR: Yes, well, you would have thought so, especially for a mention.
97MR McQUILLAN: Yes.
98HIS HONOUR: A mention that is done online.
99MR McQUILLAN: Yes.
100HIS HONOUR: All right. Actually look, it is taking a second. Please just hang around, I will just go off the link for a minute. So, Mr Nomarhas, do not go anywhere, just sit where you are, I will be back on the bench to get this finalised in a second.
101OFFENDER: Okay.
102(At a later stage).
103HIS HONOUR: We have got a date at the Heidelberg Magistrates' Court. Just before I do that, is there a reason why we cannot just deal with it straight away now?
104MR McQUILLAN: The charge before Your Honour is a charge that no longer exists.
105HIS HONOUR: All right.
106MR McQUILLAN: It is to be amended and, I understand from an email we received, that they intend to amend it - only the Magistrates' Court can do that, Your Honour. I have been looking at the Criminal Procedure Act this morning.
107HIS HONOUR: All right. Thank you, all right. In which case, Mr Nomarhas, I will remand you in custody to appear for mention at the Heidelberg Magistrates' Court at 9.30 am on 30 September, all right?
108OFFENDER: Yes, Your Honour.
109HIS HONOUR: All right. Thank you all.
110MR McQUILLAN: Thank you.
111MR McCONAGHY: Thank you, Your Honour.
112HIS HONOUR: I will adjourn the court until 10.30.
113MR McQUILLAN: Thank you, Your Honour.
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