Director of Public Prosecutions v Noori
[2019] VSC 172
•28 March 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0247
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAEED NOORI |
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JUDGE: | HOLLINGWORTH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12-14 February 2019 |
DATE OF SENTENCE: | 28 March 2019 |
CASE MAY BE CITED AS: | DPP v Noori |
MEDIUM NEUTRAL CITATION: | [2019] VSC 172 |
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CRIMINAL LAW – Sentence – Murder (1 charge) – Recklessly cause serious injury (11 charges) – Conduct endangering life (5 charges) – Offender deliberately drove at speed into crowd of pedestrians at busy CBD intersection – Very serious offending – Guilty plea – Verdins considerations – Sentenced to life imprisonment – Non-parole period of 30 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M Gibson QC with Ms A Ellis and Mr S Milesi | Solicitor for Public Prosecutions |
| For Mr Noori | Mr D Dann QC with Mr T Smurthwaite | Paul Vale Criminal Law |
HER HONOUR:
On the afternoon of Thursday the 21st of December 2017, you drove your mother’s Suzuki Vitara SUV into the Melbourne CBD.
Shortly before 4:40pm, you were driving west along Flinders Street. As you approached the intersection with Elizabeth Street, the traffic lights turned red, causing you to come to a stop. You stopped behind two other stationary vehicles, some 36.5 metres east of the intersection. You remained in that position for about 7 seconds.
When the lights were red, pedestrians could use the intersection to cross both Elizabeth and Flinders Streets in any direction they chose. Whilst stationary, you were able to observe and assess the extent of pedestrian traffic crossing the intersection. There were, in fact, more than 70 people crossing at that time. This is one of the city’s top five busiest intersections, and it was the Thursday before Christmas.
Suddenly, whilst the traffic lights facing you were still red, you pulled out from behind the car in front of you, drove onto the westbound tram tracks of Flinders Street, and accelerated heavily towards the intersection. You had reached a speed of around 50 km per hour before you hit the first pedestrian. You drove your car straight into the intersection, deliberately colliding with many pedestrians who were still in the process of crossing. It is clear from the CCTV footage that you did not at any time attempt to stop, slow down, or avoid people in the intersection.
You then veered to the left. It is not clear whether you did that to try to hit more pedestrians, or in an attempt to avoid the tram stop that was located on the western side of the intersection. You braked and collided heavily with the bollards that protected the tram stop. The collision brought the car to an immediate stop, less than 20 seconds from when you had first pulled out onto the tram tracks.
An off duty policeman, Sergeant Francis Adams, had just got off a tram when the incident occurred. He saw and heard what happened. After he saw your car collide with the bollards at the tram stop, Sergeant Adams ran to the car and restrained you.
The Critical Incident Response Team attended the scene shortly thereafter, and took you into custody.
As a result of your actions, one man was killed and many people were seriously injured. Others managed to jump out of the path of your vehicle, thereby avoiding serious injury. Given your speed and manner of driving, it is only by sheer good fortune that more people were not killed or injured.
Arising out of these events, you pleaded guilty to 1 charge of murder,[1] 11 charges of recklessly causing serious injury[2] and 5 charges of conduct endangering life.[3]
[1]The maximum penalty for murder is life imprisonment.
[2]The maximum penalty for recklessly causing serious injury is 15 years’ imprisonment.
[3]The maximum penalty for conduct endangering life is 10 years’ imprisonment.
Your actions have had devastating consequences for so many people.
As a result of being struck by your car, Antonios (Anton) Crocaris sustained head injuries, from which he died in hospital eight days later. He was 83 years old. The basis of the reckless murder charge (charge 1) is that you caused Mr Crocaris’ death by the conscious, voluntary and deliberate act of driving into pedestrians, knowing that it was probable that death would result from your actions.
Many people were injured as a result of your actions; some received life-threatening or substantial and protracted injuries. In the case of the 11 charges of recklessly causing serious injury (charges 2 to 12 inclusive), you caused those serious injuries when you deliberately drove at people and struck them with your car, knowing full well that it was probable that serious injuries would be sustained as a result.
Gichan Park was a 69 year old South Korean tourist. He and his family were crossing the road towards Flinders Street Station when he was struck by the car. Mr Park sustained a brain injury, multiple rib and pelvic fractures, a fracture to his spine, and other injuries. He was in a critical condition in an intensive care unit for some time. (charge 2: recklessly causing serious injury)
Gichan’s great nephew, Chaejin Park, was 4. He was struck whilst being carried by his grandfather. He received a skull/facial fracture, fractures to his right tibia and fibula, abrasions and swelling over his right hip and elbow, swelling to his back, and lacerations to his stomach and forehead. (charge 3: recklessly causing serious injury)
Chaejin’s grandfather, 61 year old Jisoo Kim, sustained head injuries, and fractures to his pelvis and leg. He was in a critical condition in an intensive care unit for some time. Thereafter, he required lengthy hospitalisation and extensive physiotherapy. (charge 4: recklessly causing serious injury)
Tong (Tony) Li was a 24 year old international student from China. He sustained multiple fractures to his skull, fractures to his face, spine and a rib (which punctured his lung), a brain injury, nerve damage and haemorrhaging. Mr Li was also admitted to intensive care. (charge 5: recklessly causing serious injury)
Rohit Kaul was a 45 year old service delivery manager. He sustained open fractures to his tibia and fibula, multiple rib fractures, internal bruising, a fractured tooth, and abrasions to his face, upper limbs and right leg. He underwent orthopaedic surgery and requires ongoing physiotherapy. (charge 6: recklessly causing serious injury)
Rebecca Marchitto was a 35 year old administrative assistant. She sustained bleeding on the brain, together with fractures to both wrists, left elbow, femur, tibia and fibula. (charge 7: recklessly causing serious injury)
Satinder (Sonya) Rangi, was a 30 year old team leader. She tried to jump out of the car’s path, but was struck by it, sustaining multiple facial fractures and a dislocated jaw. She has had two plates inserted into her cheek. (charge 8: recklessly causing serious injury)
Vishal Aggarwal was a 41 year old IT and business consultant. He sustained head injuries, a ruptured carotid artery, facial fractures, renal laceration and multiple bruises and abrasions. (charge 9: recklessly causing serious injury)
Ngoc Huynh was a 47 year old baker, who sustained facial fractures, fractured ribs, multiple pelvic fractures, and fractures to her left humerus, ulna and fibula. Many of her injuries required surgery. She was unable to bear weight for eight weeks, and required intensive physiotherapy. (charge 10: recklessly causing serious injury)
Cara Mullan was a 25 year old Irish woman, who was in Australia on a working visa. She sustained two fractures to her pelvis, a fracture to her spine, and lacerations and abrasions to her head, arms, legs and face. She was unable to bear weight for a number of weeks, and required significant rehabilitation to walk again. (charge 11: recklessly causing serious injury)
Kees Green was a 43 year old senior technical manager. He pushed two women out of the car’s path, before being struck himself. He received multiple fractures to his spine, a laceration and abrasions to his forehead and shoulder, bruising to his chest wall, and pain to his knee and shoulder. (charge 12: recklessly causing serious injury)
The remaining five charges are for the offence of conduct endangering life. By deliberately driving your car into a group of pedestrians, you placed those people in danger of death. You foresaw that an appreciable risk of death was a probable consequence of your conduct, but went ahead regardless.
Ethan Caruso was a 17 year old student. He pushed his friend out of the car’s path before it hit him. Mr Caruso sustained multiple soft tissue injuries. (charge 13: conduct endangering life)
Andrew Lovett was 28 years old and working in sales. He sustained grazes, pain and bruising, but did not require medical treatment. (charge 14: conduct endangering life)
Luigi Di Vico was a 26 year old Italian chef, who was in Australia on a working visa. Mr Di Vico sustained a broken thumb, multiple soft tissue injuries and abrasions. (charge 15: conduct endangering life)
Esperanza Arcella was a 25 year old Spanish student and waitress. The car drove past her so closely that it brushed her hand; she was then struck by an object or person, which caused her to fall to the ground. Ms Arcella sustained a sore back, and a minor cut and bruising to her left hand. (charge 16: conduct endangering life)
The final charge of conduct endangering life (charge 17) relates to your conduct in relation to a group of people who were injured, either by being directly hit, or by colliding with others as they tried to escape your car. Those injured, and the injuries they sustained, include the following: Spiridon Dimitropoulos, aged 32, suffered a soft tissue injury to his knee; Natalia Firth, aged 37, sustained bruising to her head, leg and shoulder; Clare Fraser, aged 32, was winded during the incident, and suffered from pain and shock; Nicole Galvin, aged 31, suffered a broken scaphoid bone, and bruising to her arms and legs; Johanna Scurry, aged 33, sustained a fractured left fibula; and Michelle Mason, aged 30, received abrasions to her knee and elbow after pushing a colleague out of the way.
Many of your victims still suffer from the physical effects of their injuries. In some cases, they still experience pain or require ongoing treatment or therapy. Others are no longer able to perform the same work, or engage in the same leisure activities, as they did before the incident.
Your actions have profoundly affected the lives of so many people – not only those who were there at the scene, but also people in the wider community.
The deceased man, Anton Crocaris, was born in 1934 in Greece, and moved to Australia in 1952. He worked hard throughout his life, as a labourer, a welder, and a general hand. He married Elizabeth Voulgaraki in 1962, and together they had three children, Freda, Tony and Bill. A widower since 2014, he remained active and engaged in his retirement. Mr Crocaris enjoyed gardening (particularly growing his own fruit and vegetables), volunteering, and attending sporting events and school functions for his three grandchildren. His family miss him greatly.
There are a number of common threads to the numerous victim impact statements filed in this case.
Some victims have likened the scene to a horror movie – one which keeps replaying in nightmares or flashbacks, and keeps them awake at night. Initial feelings of shock and helplessness have been replaced by anxiety and depression, with some experiencing symptoms severe enough to have been diagnosed as post-traumatic stress disorder.
Many feel that they have lost their sense of optimism and trust, and have become suspicious of strangers. You have shattered their sense of safety, and caused so many to be hyper-vigilant when they are out in public, or in a situation that they cannot control. Sirens, screeching tyres, the sight or sound of a car accelerating, erratic drivers, crowds, busy intersections – these are just a few of the things that can bring on panic attacks for survivors and witnesses. Most of them either dread, or avoid altogether, going back into the CBD, or to that particular intersection.
It has also been hard for the family, friends and colleagues of your victims to truly understand what they have been through, and to know how best to support them; many relationships have suffered as a consequence.
But in the midst of the chaos and mayhem at the intersection, many ordinary people did extraordinarily brave and compassionate things that day. Some people risked their own lives, pushing others out of your path. An off-duty policeman quickly went and restrained you on his own, without concern for his personal safety. Many bystanders stayed and comforted the injured and traumatised, in some cases for several hours. One of the people whom you hit wrote to the Crocaris family, to let them know that strangers had comforted Mr Crocaris and held his hand as he lay there, critically injured. She concluded her letter by saying ‘Please remember, as we are struggling to, that most people are kind and decent to each other. I saw one man do something hateful, but I saw many more people do something loving that day.’
I turn to consider the seriousness of your offending. The prosecution argued that this was all extremely serious offending – serious enough to justify the imposition of a life sentence for the murder charge. The defence did not dispute that the offending had many very serious features, but argued that something short of a life sentence should be imposed, for two reasons: first, because of your mental health issues, and secondly, because you pleaded guilty. I will start by considering the serious features of your offending that are not in dispute.
Deliberately driving a vehicle into a crowd of people is a dreadful crime, one which undermines the right of ordinary citizens in a civilised society to be able to go about their normal daily activities in public, without fear of being harmed.
You chose to commit the offences in the public domain, in a crowded public space where your actions would have the most dramatic effect. Your actions have indeed horrified and traumatised many people.
The offending was entirely unprovoked, and displayed a callous disregard for the sanctity of human life. Whatever your motive was for committing these offences, it had nothing to do with the particular victims.
The victims of your offending were all in a physically vulnerable position; they were in a crowd of defenceless pedestrians, who were simply crossing an intersection with the traffic lights in their favour.
Driving into the crowd of pedestrians was not a spontaneous or impulsive act; it was something you had planned. However, there is some dispute about the extent of the pre-planning, which I will consider shortly.
It is clear that you were motivated by what you believed was unfair treatment and intrusion by the government (primarily through ASIO) against you and Muslims generally. But what is in dispute is the extent to which mental illness played a role in the creation of those beliefs and motivation.
In order to understand your actions that day, it is necessary to look in some detail at your background, and the events leading up to the offending.
You were born in Afghanistan in March 1982, one of 10 children in your family. You were 35 years old at the time of the offending. You are now 37.
When you were about 12, your family fled to Iran as refugees, to escape the Taliban. You received little formal education. You arrived in Australia on a humanitarian visa when you were 22, and became an Australian citizen in November 2006.
After you arrived here, you worked in various telemarketing jobs. Initially, you were a hardworking and highly motivated employee. However, you were also a heavy gambler, losing large amounts at the casino.
You started using illegal drugs around 2007, and your usage escalated after one of your brothers died in 2009. By 2011, you were a very heavy user of methamphetamine (also known as ice). You have occasionally used other illegal drugs, such as cocaine, ketamine, heroin and ecstasy, but ice has been your primary drug of dependence. Your drug use eventually escalated to the point where you could no longer hold down a job. You were unemployed at the time of this offending.
In 2012, you travelled back to Afghanistan to get married, although you were not able to bring your wife to Australia until 2015. At the time of the offending, you were living in a unit in Heidelberg West, with your pregnant wife and your 18 month old son. Your second child together was born in April 2018. You have also fathered another child to a previous partner.
Your first contact with mental health services seems to have been in October 2014, when you were detained under the Mental Health Act. At the time, you were suffering from paranoid symptoms and had armed yourself with a knife. You were reported as having had those symptoms for over a year. After you were discharged in December 2014, you refused to engage in any follow up treatment at that time.
For most of 2015, you were travelling overseas, mainly in Iran and Afghanistan. Drugs were much cheaper there than in Australia, and you used heroin as well as ice throughout that period. You have reported experiencing a lot of psychotic episodes during that time.
In February 2016, soon after your return to Australia, you were admitted to a psychiatric unit, once again reporting paranoid and persecutory ideation. You were provisionally diagnosed at that time with a drug-induced psychosis.
You went back to the Middle East later in 2016, and spent some time in Dubai, trying to quit drugs. When you returned to Australia on the 9th of January 2017, because of an outstanding warrant for your arrest on some drug charges, your arrival triggered an inward alert; that resulted in a baggage search and questioning by Border Force. This event appears to have been something of a catalyst for you believing that you were being persecuted and monitored by ASIO.
In September 2017, DHHS child protection services became involved with your family, after they received a notification about family violence and drug use. DHHS workers who saw you at the time described you as being aggressive and paranoid about ASIO. Indeed, your delusions extended to believing that the DHHS workers themselves were from ASIO.
By the time you saw mental health workers in late September and early October 2017, you acknowledged that you were again using large amounts of ice. However, you did not accept the relationship between your drug usage and your ongoing paranoid delusions.
You were seen regularly by various mental health professionals during the period between late September and early December 2017. Throughout that period, despite being on various antipsychotic medications, you continued to display bizarre, paranoid, persecutory delusions that ASIO was interfering with and monitoring every single aspect of your life.
At that time, the views of your various treating psychiatrists differed as to whether the correct diagnosis was drug-induced psychosis, paranoid schizophrenia, or a combination of the two. You were last seen by a psychiatrist on the 8th of December 2017, a fortnight before this offending.
Although you have given different accounts about your drug usage in the lead up to this offending, there is no evidence that you were drug affected at the time. It seems that you may have used ice a few days before the 21st of December, but it would have been out of your system by the time of the offending. What happened on the 21st was not due to a drug-induced psychosis.
There is nothing specific in the days leading up to the 21st that seems to have triggered your particular actions that day.
On the previous day, the Wednesday, you had spent a short time gambling at Crown Casino. You had also booked a computer technician to attend your home at noon the next day.
When you woke up on the Thursday morning, you told your wife that you hadn’t slept well and your shoulder was hurting. You nevertheless went about making various arrangements for a traditional New Year’s celebration with your family.
You went to the bank at 9:41am and withdrew $7,000. You then deposited $3,000 into your mother’s account via an ATM. The bank clerk who handled the withdrawal noted nothing abnormal in your behaviour.
The computer technician arrived shortly before 1:00pm. In the course of fixing a problem with a password-protected laptop, the technician removed the hard drive; you then put it in a laptop bag. That particular hard drive was not subsequently located by police. The prosecution initially suggested that one of your purposes in having the hard drive removed was to attempt to conceal your activities recorded within the hard drive. But there is simply no evidence as to what was on the hard drive. Furthermore, given that the police found plenty of other incriminating material on an iMac and another hard drive that they seized at your home, it is not obvious why you would attempt to hide only some incriminating material in this way. Finally, it seems that there was a legitimate technical reason to remove the hard drive. In those circumstances, I am not satisfied beyond reasonable doubt that what happened in relation to the hard drive shows that you had started planning the offending by then.
At some stage after returning home from visiting the bank, you changed out of the shorts and t-shirt you were wearing earlier that day, into a white shirt, blue jeans and business shoes. Although the prosecution led evidence that the colour white has some special significance to Muslims, as it symbolises purity, cleanliness, brotherhood and peace, there is nothing particularly unusual about what you changed into. I am not persuaded that that there was anything sinister about your change of clothing.
You left home around 1:00pm, telling your wife that you were going into the city to buy clothing for the New Year’s Eve party. Instead, at 1:35pm, you caught a bus to Preston, where you visited an Avis car rental business. You asked to hire a small SUV, which was parked in the yard. That car belonged to a staff member, and no SUVs were available for hire. You were told that only sedans were available for hire. However, because you could not provide a credit card to complete the transaction, your request to rent a sedan was refused.
You immediately walked to a nearby Europcar rental business, and asked about hiring a vehicle. The staff member who served you thought you might have asked for an SUV or a ute, but he was not completely sure; in any event, no such vehicles were available. You asked for a quote on a van for a single day. Once again, the transaction could not be completed because you did not have the necessary credit card, and there was insufficient money on your debit card.
At 2:44pm you caught a bus, and then walked some distance to your mother’s house in Oak Park. After speaking to your mother and one of your brothers for about 10 minutes, you asked to borrow your mother’s car to go to the doctors. Your mother agreed to lend you her car. But you did not drive to the doctors; instead you drove straight into the CBD, a distance of about 15 kms.
You told Dr Andrew Carroll, a forensic psychiatrist, that the reason you had tried to rent a vehicle was because you had a fridge to move. Your counsel said that you had been in the process of moving things between two houses over the past month or two, and that may have provided a legitimate reason for you to want to hire a vehicle. The prosecution said that I should reject that argument, and should infer that by the time you went to Avis and Europcar, you had already decided to drive into pedestrians.
I accept that you had been moving possessions around that time. But if it truly was your intention to obtain a vehicle to move a fridge that day, there seems to be no good reason for you not to have mentioned that to the various family members to whom you spoke that day. Instead, you told separate and different lies to your wife and mother about your plans for the afternoon. And how would a fridge have fitted into the sedan that you enquired about renting, after you were informed that no SUV was available at Avis? Furthermore, the fact that you changed into more formal clothing before you left the house hardly seems consistent with an intention to move furniture.
You may not have had a definite plan in terms of when and where you were going to act, but I am satisfied beyond reasonable doubt that the reason you were attempting to obtain a vehicle in the early afternoon was because you were already contemplating using it to drive into pedestrians.
That said, the evidence does not allow me to be satisfied to the requisite standard that you were trying to obtain the largest possible vehicle, in order to cause maximum damage.
You drove your mother’s car into the city in a normal manner; there was nothing erratic about your driving, until the moment you pulled out onto the tram tracks. When you stopped at the intersection, you left a gap of more than a car’s length between your car and the car in front; that gave you plenty of room to pull out and around the vehicle in front. You waited at the red light for 7 seconds, watching people pouring into the intersection, before quite deliberately pulling out and onto the tram tracks. Whilst sitting at the traffic lights, you had an opportunity to reconsider your plans, but went ahead anyway.
Why did you do this terrible thing? There are a number of pieces of evidence that need to be considered.
When Sergeant Adams ran to the car and restrained you, he told you that you were under arrest. You replied ‘Allah Akbar’ at least two or three times, while resisting his attempts to restrain you. Numerous witnesses heard Arabic music being played loudly in the car.
At 5:14pm, you were assessed at the scene by a MICA paramedic, who observed that you were fully conscious and aware. You gave him a number of inconsistent accounts of what had happened. You said that somebody had jumped in front of your car, and that had caused you to lose control. You later told him that you didn’t know what caused the accident. At other times, when asked about the cause of the accident, you answered ‘no comment’.
Just before 8:00pm that evening, homicide squad investigators spoke to you at the hospital, after formally cautioning you. You admitted that you were the driver, and that your actions were intentional. You acknowledged that the victims were innocent people, and that you subconsciously knew what you were doing was wrong. You said you had acted alone and not told anybody about your plan.
You also told the police that you had acted ‘in the name of Allah’, and he had told or commanded you in a dream to do it. You said you’d had a voice constantly in your head, overwhelming you, over the preceding two weeks; you felt you had no choice. You said that whilst you were sympathetic to the terrorist organisation Islamic State, you did not know any members, and just supported your religion. You spoke about suicide and suggested that you intended to be a martyr, saying that as a Muslim you were forbidden from taking your own life, but it was acceptable for you to die in a war. You also said you had fasted for seven days prior to the incident.
You condemned the Australian government as being racist, as oppressing and picking on Muslims. You repeatedly expressed a belief that you and Muslims in general were being targeted by ASIO, and being spied upon. You said ‘I’ve been tortured by this government for about three and a half years. They got me to a point that it was a voice within – within me ask me to do it.’ You also compared your actions to those of the Australian government killing and injuring people, including innocent children, in Afghanistan, Iraq and Syria.
Whilst speaking to police at the hospital on the 22nd, you asked them why they were from the homicide, not the terrorism, squad. You said that ‘Normally when a Muslim guy does something it’s terrorist.’
You were assessed by a forensic medical officer on the 22nd and found not to be fit for interview, because you had not taken your antipsychotic medication and needed rest. You were only declared medically fit for interview on the following day.
Also on the 22nd, police seized a iMac computer and external hard drive from your home. The iMac contained a number of encrypted images, including stills showing various terrorist attacks (including vehicle-borne attacks in 2017 in London, Charlottesville and Barcelona), CNN videos about ISIS, images from warzones in Syria and Iraq, images relating to protests in relation the Muslim travel ban by the United States of America, and photographs of you holding firearms.
The external hard drive contained numerous documents relating to hiding one’s identity online, the dark web, constructing hiding places, and how to travel abroad surreptitiously. You also used a virtual private network, and a type of browsing that uses end to end encryption, to try to ensure that your internet activities could not be traced.
The material located on the iMac clearly demonstrated that you had an interest in terrorist attacks, the war in Syria and Iraq, and global politics associated with the perceived oppression of Muslims by the West.
The evidence is that you had last accessed some of those images of terrorist attacks on the iMac on 17 September 2017, some three months before this offending. That is not particularly surprising, given your acute mental state in September 2017, when you were receiving mental health treatment for paranoid delusions about ASIO. In the course of a psychiatric assessment on 2 October 2017, you told the registrar that you had thought about a terrorist attack, but it went against your religion as you did not want to hurt innocent people.
For the purposes of sentencing, you were assessed by two very experienced forensic psychiatrists, Dr Lester Walton and Dr Andrew Carroll, both of whom provided reports for the court. Dr Carroll also gave extensive oral evidence. As well as assessing you in person, they each had access to your past mental health records, and to documents relating to this offending.
Both of them concluded that you did not have a mental impairment defence open to you, because, notwithstanding your paranoid delusions, you knew what you were doing, and knew that your actions would be regarded as wrongful by others.
Dr Carroll’s opinion is that, as at 21 December 2017, you had been suffering from paranoid schizophrenia for several years. That is a severe, enduring mental illness, the characteristics of which include delusional beliefs and auditory hallucinations (or hearing voices). Although schizophrenia may develop over time out of earlier drug-induced psychoses,[4] it can also develop without such a background.
[4]According to Dr Carroll, recent research shows that around 30% of people with an initial diagnosis of methamphetamine-induced psychosis go on to develop schizophrenia as a stand-alone disease.
The fact that previous treating psychiatrists might have been equivocal as to the precise diagnosis for your condition did not surprise either Dr Carroll or Dr Walton. As Dr Carroll explained, it is not always easy for a treating psychiatrist to come to a definitive diagnosis, as the lines between different diagnoses are not always clear in a clinical setting, particularly where drugs are involved. Also, treating psychiatrists do not have the benefit of all the information that is available to a forensic psychiatrist.
Dr Carroll noted that the severity of your schizophrenia, and therefore the extent of your paranoid delusional beliefs about ASIO, had fluctuated over the years. He said that at the time of the offending, you were not in one of your more acute phases, and were not intensely pre-occupied with your persecutory beliefs. In particular, Dr Carroll was unable to find any evidence that:
(a) You were in a grossly disorganised psychotic state, or were suffering from severe mood symptoms, on the day of the incident;
(b) You had any delusions of any kind in respect of the pedestrians with whom you collided;
(c) The hallucinatory voices that you described, including that of Allah, were perceived as overwhelmingly powerful or intensely threatening to you personally;
(d) You felt that your actions at the relevant time had been entirely controlled by an external force or agency; or
(e) You believed that you were under imminent threat or danger.
Even though you may not have been in a particularly acute or florid state at the time, both psychiatrists agreed that your judgment as to the appropriateness of your actions would have been impaired to some extent by your active psychotic symptoms. That is to say, there was a clear link between your longstanding mental illness and your decision to carry out some kind of action, whether that was to make ASIO or the government leave you alone, or to take some revenge on them for persecuting you. However, Dr Carroll described the extent of that impairment as ‘moderate’.
An offender’s impaired mental functioning, whether temporary or permanent, may be relevant to sentencing in a number of ways:
(1) The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances, and denunciation is less likely to be a relevant sentencing objective;
(2) The condition may have a bearing on the kind of sentence that is imposed, and the conditions in which it should be served;
(3) Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both;
(4) Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the same considerations;
(5) The existence of the condition at the date of sentencing may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health; and
(6) Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
These considerations are generally referred to as the Verdins principles, after a Court of Appeal decision of that name.[5] Verdins principles may operate so as to moderate the minimum term and/or the head sentence, depending on the circumstances of the individual case.
[5]R v Verdins (2007) 16 VR 269.
In this case, your counsel argued that Verdins principles 1, 3, 4 and 5 apply as mitigating factors in sentencing you. I accept the evidence that your judgment as to the appropriateness of your actions would have been impaired to some extent by your active psychotic symptoms, which should lead to some reduction in your moral culpability, and in the need for general and specific deterrence. However, the extent of that reduction is only moderate, given the evidence as to the extent of your impairment at the time of offending.
Whilst you have been in custody, you have been held within prison psychiatric facilities; whether or not that will continue after sentencing is unknown. In any event, both forensic psychiatrists expressed the opinion that, even with ongoing anti-psychotic medication, your residual psychotic symptoms are such that prison will be more onerous for you than for somebody without your mental health problems. That is because your feelings of paranoia and distress are exacerbated by being held in custody.
Apart from your mental health problems, there are some other matters that I need to consider before I pronounce your sentence.
You were arrested for the current offences on the 21st of December 2017. The committal hearing was delayed until September 2018, to enable various expert reports to be obtained as to your mental state, for both fitness and mental impairment purposes; that was an entirely appropriate thing to do, given your mental health history. The committal hearing was very restricted in its scope, and did not involve the examination of any of the victims. You were committed to stand trial on one charge of murder, and multiple charges of attempted murder. After negotiation with the prosecution, the attempted murder charges were replaced by the current charges of recklessly causing serious injury and conduct endangering life. On the 7th of December 2018, you pleaded guilty to these offences. Whilst it is not a plea at the earliest possible time, it is a relatively early plea in the circumstances.
You are entitled to a discount on the sentence to be imposed upon you in recognition of your guilty plea, and its utilitarian value. Your plea has facilitated the course of justice. The community has, by your plea, been spared the time and cost of a trial. Because of your plea, witnesses, victims and their family and friends, have been spared what would, undoubtedly, have been a very traumatic trial for all concerned.
In addition to any remorse which is implicit in your plea, you have demonstrated some remorse by acknowledging that the people you killed or injured were innocent, and by expressing regret at what happened to them. However, as Dr Carroll explained, assessing remorse can be difficult in a case such as this where a delusional mental illness is involved.
A guilty plea should always be reflected in the sentence that the court sets. But the fact that an offender has pleaded guilty (even at an early stage) does not necessarily mean that it is inappropriate to impose a life sentence, if the offending is serious enough to warrant such a sentence.
Between April 2010 and June 2017, you appeared before courts on five separate occasions, in relation to relatively minor offences that have little relevance to this offending. On three of those occasions, no conviction was recorded, and on the other two a fine was imposed.
As far as specific deterrence is concerned, your prior criminal history is largely irrelevant. The prosecution does not dispute that your mental health problems at the time of offending would reduce the importance of specific deterrence as a sentencing consideration, albeit to a moderate extent. But the fact that your schizophrenia has so far been treatment-resistant does mean that issues of community protection loom larger as a sentencing consideration. Although you are not without prospects of rehabilitation, they are inextricably linked to your mental health problems.
As far as general deterrence is concerned, the prosecution pointed to a number of recent incidents around the world in which vehicles have been driven into crowds of innocent people; they include the case of James Gargasoulas, the man who drove into people in Bourke Street, Melbourne, in January 2017.[6] The prosecution argued that there was a need to impose a sentence that would deter others from engaging in similar acts. For the reasons already given, your paranoid schizophrenia reduces, but does not eliminate, the need for general deterrence in this case.
[6]Mr Gargasoulas was recently sentenced by Weinberg JA: DPP v Gargasoulas [2019] VSC 87.
Your mental illness has a similar moderating effect on the principles of denunciation and just punishment.
However, the fact remains that, despite the mitigating factors upon which your counsel relied, your offending was truly appalling.
For the murder of Antonios Crocaris (charge 1), I sentence you to life imprisonment. This is the base sentence.
As far as the remaining charges are concerned, all of your victims were part of the same crowd, and were hit within the same short period of time. So there is no basis for distinguishing between those charges based on your particular actions in relation to individual victims.
As part of the plea negotiations, the remaining charges have been divided into two categories, which reflect the nature and extent of the injuries to your victims. In the case of each of charges 2 to 12 (recklessly causing serious injury), the injury you caused falls within the legal definition of a ‘serious injury.’ In the case of each of charges 13 to 17 (conduct endangering life), the injury that you caused fell short of that legal definition. The barristers did not suggest that I should attempt to differentiate further between the injuries suffered within each of the two offence categories, and I do not propose to do so in the particular circumstances of this case.
For each of charges 2 to 12 inclusive, recklessly causing serious injury, I will impose a sentence of five years’ imprisonment.
For each of charges 13 to 16 inclusive, conduct endangering life, I will impose a sentence of two years’ imprisonment.
Because charge 17 involves conduct which endangered the lives of many people, not merely one victim, I propose to impose a sentence of four years’ imprisonment for that offence.
Once a sentence of life imprisonment is imposed, no other sentence can be cumulated on it. Accordingly, each of the sentences for the charges of recklessly causing serious injury and conduct endangering life will be served concurrently with each other, and with your sentence of life imprisonment.
I fix a period of 30 years as the period you must serve before you become eligible for parole.
Had you not pleaded guilty, I would have sentenced you to life imprisonment with a non-parole period of 35 years.
Further, I declare that the period to be reckoned as already served under this sentence is 462 days, not including today's date. I direct that there be noted in the records of the court the fact that such declaration was made and its details.
I have also made the disposal order sought by the prosecution.
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