Director of Public Prosecutions v Omar
[2023] VCC 2237
•30 November 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-02046
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOHAMED OMAR |
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JUDGE: | HER HONOUR JUDGE RIDDELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 November 2023 | |
DATE OF SENTENCE: | 30 November 2023 | |
CASE MAY BE CITED AS: | DPP v Omar | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2237 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Recklessly Cause Serious Injury --- Use of Vehicle --- Lengthy Criminal History --- Relevant Priors --- Plea of Guilty --- Expression of Remorse --- Community Protection --- Acquired Brain Injury --- Denunciation --- Interplay of Drug Use
Legislation Cited: -
Cases Cited:Bugmy v R (2013) HCA 37 --- R v Verdins [2007] VSCA 102 --- DPP v Hermann [2021] VSCA 160 --- R v Cropley [2009] VSCA 32 --- DPP v Massey [2008] VSCA 254
Sentence: 5 Years 2 Months Imprisonment --- $250 Fine
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Ellwood | Office of Public Prosecutions |
| For the Accused | Mr S. Ranjit | Papa Hughes Lawyers Pty Ltd |
HER HONOUR:
1Mohamad Omar, shortly after a sentence indication given by me on 10 August 2023 you entered pleas of guilty to one charge of causing serious injury recklessly and one charge of theft of a motor vehicle. You have also pleaded guilty to summary charges relating to driving whilst disqualified, committing an indictable offence whilst on bail, contravening a conduct condition of bail, and driving with incorrect number plates.[1]
[1] Arraignment 21 August 2023.
2The victim in this matter is Mr Hassan El-Zayat. The relationship between you, if any, is unknown.
3You are now 41 years of age and you were 39 at the time of your offending.
Summary of offending
4On 11 January 2022, you were at your former partner, Ms Tzitzaris' house. Ms Tzitzaris found you in a paranoid mood with you repeating 'they’re after me' and looking over your shoulder.
5You travelled to Broadmeadows Shopping Centre. Ms Tzitzaris accompanied you but travelled in her own car because of her concerns about your behaviour. She also suspected the car you were driving may have been stolen.
6That car you were driving was a Ford Ranger utility bearing registration plates ending 2TK. These were 'cloned' plates belonging to a Hyundai 1X35 wagon.
7You left the shopping centre at about 1.16 pm to return to Ms Tzitzaris' address.
8You turned onto Graham street, Broadmeadows. Mr El-Zayat was travelling east on a motorcycle towards you.
9You saw him and drove directly in the direction of Mr El-Zayat narrowly missing him, instead colliding with a Ford Falcon sedan that was parked in the driveway of a unit on Graham Street.
10You then reversed and deliberately drove at Mr El-Zayat, causing him to fall off his motorcycle.
11While he was on the ground you reversed and drove at him a number of times. Witnesses give varying accounts of the number of times that you drove at Mr El‑Zayat. Their accounts range from 2 to 10 times.
12On at least one of these occasions you struck Mr El-Zayat in his right lower leg with your vehicle.
13Mr El-Zayat sought shelter behind another motor vehicle. You continued to drive at him but were unable to hit him due to the parked car.
14Bystanders witnessed the event and called 000.
15You left the scene and returned to Ms Tzitzaris' house. You were yelling and screaming, and after an argument you left.
Injury
16Mr El-Zayat was taken to the Royal Melbourne Hospital by ambulance where he underwent two surgeries and was admitted to the Intensive Care Unit.
17The initial surgery was conducted on 11 January 2022 and the second surgery on 14 January 2022. His injuries were considered limb-threatening requiring emergency surgery.
18Mr El-Zayat's injuries included a small fracture to his right knee; an avulsion fracture to the fibula head in his right leg; a comminuted fracture to the fibular shaft in his right leg, meaning the bone was broken into more than two pieces; this fracture was posteriorly displaced meaning that the bone was forced backwards and was off-ended. He also suffered a comminuted, off-ended laterally displaced distal right tibial shaft fracture and a tibial artery injury caused by a sharp 2 x 1 cm fragment of bone embedded in the artery; a degloving injury to the right heel of approximately 60% circumferential around the heel; associated compartment syndrome of the right lower limb; and upper and lower limb abrasions.
19The Forensic Medical Officer who provided a statement stated that the injuries were limb-threatening and there was a propensity to bleed and suffer infection. Without surgical intervention he may have lost complete function and viability of his right foot and lower right leg. The exposed nature of his injuries placed him at a very high risk of infective complications, including sepsis, necrotizing fasciitis and subsequent multi-system organ failure.
20Mr El-Zayat's initial surgery involved the orthopaedic and plastic surgery team releasing the pressure within the muscle compartment and repairing the broken bones in the right tibia and fibula.
21Mr El-Zayat's second surgery involved the removal of inserted metal work and the insertion of a tibial nail to stabilise the fracture.
22Mr El-Zayat reported poor dorsiflexion of his foot during a follow up appointment on 27 January 2022. This is likely to affect his ability to walk and may remain an ongoing issue.
23Mr El-Zayat presented for further medical management on 16 February 2022. The heel wound had become necrotic requiring surgical excision of that tissue and a further skin graft. He was discharged on 23 February 2022 against medical advice and did not attend for further booked review appointments.
24Medical opinion provided stated that his recovery may take longer than 6 months in ideal circumstances given the complicated nature of his injuries. However with the addition of post-operative complications such as infection, his recovery was likely to be further than that period.
Charge 2 - Theft
25Subsequent to the events of 11 January 2002, on 19 January 2022 police were called to view a Ford Ranger in Sydney Road, Coburg. At that point there were no registration plates fitted.
26The vehicle was identified as being stolen from Craigieburn on 10 August 2021. It was the car you were driving during the 11 January incident.
27A search in the vehicle discovered a cigarette butt which linked you by DNA testing.
28You refused to provide the police with a statement in relation to Charge 1 – Causing serious injury recklessly, and you declined to be interviewed in relation to Charge 2 of Theft.
Sentencing Principles
29Turning to the applicable sentencing principles.
30Seriously injuring another member of our community is a serious offence. The sentence I impose must denounce that behaviour on behalf of the community. It must deter you and others from behaving in a way which causes injury to another person.
31The sentence I impose must also work to achieve community protection. That is particularly so in this case where you have used your vehicle to inflict serious injury on another innocent road user.
32The maximum penalty for that offence is 15 years' imprisonment.
Objective Gravity
33The use of your vehicle to cause the serious injury here is an aggravating feature of your offending.
34You were reckless in doing so – that is, you were aware that your actions of repeatedly driving at Mr El-Zayat would probably seriously injure him but persisted regardless. You caused the initial collision which resulted in him falling off his motorbike and then you deliberately drove at him, reckless as to the probability of causing him serious injury. Although I cannot conclude how many times you hit him, you accept that you drove at him a number of times and hit him at least once.
35No doubt it was a terrifying and unexpected ordeal for him.
36The seriousness of his injury is reasonably high. The list of injuries he sustained to his leg is significant. He required multiple surgeries to save his leg over the course of the following weeks. Although I do not have a victim impact statement from Mr El-Zayat, I can conclude that the impact of the injury was likely lasting for some period, if not long‑term.
37You did not stop to assist him and nor did you make any call for help for him. Rather, you left him in an injured state and left the scene.
38Those features of your offending elevate its seriousness.
39In addition, the fact that you were a disqualified driver and were on bail also aggravate the offending here, although you will not be doubly punished for those separate offences. Further, you were on a community correction order (CCO) imposed in April 2020.
40As against those matters, I accept you had not predetermined to drive at him other than in the brief moment before you did so. In that sense I accept this incident was spontaneous. In that regard it is bizarre, no doubt referable in some part to your poor mental health and use of drugs.
41For those reasons on any view however this is at least a mid-range example of this kind of offence.
Personal Circumstances
42I turn now to your personal circumstances.
43I have been assisted by a neuropsychological assessment report authored in March 2010 by Dr Lindsay Vowels, a psychological assessment report authored by Alison Mynard, in September 2017 and a psychological assessment report authored on 29 October 2023 by Ms Mynard.
44At the sentence indication hearing I was provided with the first two of those reports. The matter was adjourned prior to your plea in order to obtain the further report from Ms Mynard.
45There is no dispute that your personal history is one involving abuse and trauma. You told Ms Mynard that you felt very anxious when talking about your history, and reported being anxious and paranoid for much of your life.
46There is also no dispute that you have an acquired brain injury and cognitive impairment diagnosed in 2010 and now confirmed.
47Those two features of your personal history and circumstances enliven principles enunciated by the High Court in Bugmy v The Queen[2] and by the Court of Appeal in R vVerdins.[3]
[2] Bugmy v R (2013) HCA 37.
[3] R v Verdins [2007] VSCA 102.
48In short, your disadvantage and trauma suffered in your formative years have left a mark on you and impacted your behaviour and development over time. In addition, your mental impairment reduces to an extent your moral culpability for this offending and means principles of deterrence must be moderated in your case.
49Those matters were properly conceded by Mr Ellwood for the prosecution on your plea.
Background
50You were born in Australia to Lebanese parents and have four younger siblings. You spoke only Lebanese at home and did not learn English before starting school. Your lack of English significantly impacted your learning and as a result you struggled at school.
51You describe your parents as strict. You were the subject of your father's abusive behaviour. He inflicted numerous forms of physical abuse on you including forcing you to remain in ‘stress positions’ for extended periods of time and whipping you if you moved. You were fearful of him and terrified of what he might do to you.
52In addition, your paternal uncle was sexually abusive to you from the age of six until 10 years old. You report some extreme forms of physical and sexual abuse which I will not repeat here. You believe that your childhood was taken away from you.
53You eventually disclosed that sexual abuse and it emerged that your uncle was abusing others of your sibship. Your father confronted him when you were about 10 years old and bashed him, but no legal action was ever taken with your family believing problems should be fixed within the family. You believed the strain of this situation contributed to the breakdown of your parents' relationship.
54You continue to re-experience these early traumas with intrusive memories, nightmares, feeling that you are re-living this in your body and emotions.
55Your parents divorced when you were 13 and your father moved overseas, leaving your mother with the children a mortgage. You and your family became homeless for a number of years until your family eventually obtained a housing commission property.
56You felt that you had to work to support your family and left school in Year 7 or 8. You began work as a 13 year old working in a tiling company in the shopfront and then in tyre fitting.
57At 18 you worked in security. You have variously worked in labouring, sweeping, mopping and collecting rubbish. You report that you cannot hold a job down and often have a problem with your boss or someone having authority over you. You also report that you struggle to get into a routine.
58Your most recent employment was as a DJ you worked in 2022 for a short while doing labouring.
59Although you are proud of the example you provided for your younger siblings you also report feeling that you were required to sacrifice a lot to support your family. Your siblings have all been successful, with good employment histories and families.
60You have sustained a number of head injuries throughout your life, and were eventually diagnosed with an acquired brain injury (ABI) in 2010 at around 27 years.
61Your first head injury occurred at the age of nine or 10 due to a very serious fall. That had a significant effect on your behaviour and no doubt contributed to your struggles at school. Your relationships with family and friends deteriorated. You stated that you started making bad decisions and not caring about the consequences of your actions.
62You suffered further head injuries throughout your teens and were then in a serious motorcycle accident in 2012, leading to another serious head injury, as well as a broken femur. You were unable to recognise your children and wife for a period of time following that injury. You had memory loss and difficulty with concentration and vision. Physically, your ability to walk remains impacted.
63Due to your ABI, you are easily disorientated and your vision fluctuates. Your ABI causes problems with a range of cognitive processes resulting in compromised problem solving, decision making, learning capacity and abstract reasoning abilities.
64You also suffered several traumatic incidents in your early adulthood, with a close friend committing suicide in 2009 and being witness to an assault between two women in 2010; you intervened to assist and one woman collapsed into your arms and died. You were required to attend court to give evidence about that event.
65In 2019 you witnessed a shooting at the Love Machine nightclub. Two people standing right next to you were killed, one being someone you knew. Since that event you report being very alert to danger and feeling that you cannot trust people.
66Perhaps unsurprisingly in light of that history, you began using cannabis at the age of 13 and smoked daily for many years. You then progressed to methamphetamine by the age of 20. You report your use of methamphetamine in recent years has been to assist with the pain in your leg following your motorcycle accident. You also report that your use of methamphetamine has been used to assist with your depression. It appears to have escalated, that is your use of methamphetamine appears to have escalated in response to various traumas at different times.
67You also report that when you use illicit substances such as methamphetamine, you become paranoid.
68You have had periods of abstinence, however it is during these periods that your childhood trauma comes back to you and you find it intolerable to feel the emotions associated with those memories.
69When your methamphetamine use increased after various traumatic experiences, you sometimes had the belief that people were in your roof and you wondered whether there were listening devices in your roof.
70Prior to your remand you were smoking half a gram of ice per day and experienced some withdrawals once remanded.
71You have been diagnosed with stimulant use disorder, however you are in remission in the controlled environment of prison.
72You have had one major relationship with your wife Despina Tzitzaris. You and she met when you were 24. Together you have five children and you were in a relationship for 17 years. You have described that relationship as generally positive, although you are no longer together after separating six years ago. You struggled with substance abuse later in your relationship.
73Previous psychological reports indicate that your ex-wife had her own mental health issues and that you were her full-time carer for some years. Following your separation you had periods of homelessness and couch-surfing and several periods of being in custody.
74You are still in contact with your former wife as the summary of this occasion indicates you state that she is one of your biggest supports.
75You are also in contact with your children and they regularly visit you in custody. They are suffering as a result of your ongoing incarceration in relation to this matter – in particular, you have a 13 year old daughter who is experiencing severe mental health issues, including auditory hallucinations. She has experienced suicidal ideation and has attempted suicide.
76You have ongoing physical pain as a result of you various accidents and you are prescribed methadone for that pain in custody.
77Your main source of income in recent years has been through a pension and in December 2021, shortly before this offending you were granted NDIS assistance. It seems to me that package of support was in its infancy at the time you were remanded for this offending, though you have apparently attended some counselling funded through NDIS and your intention is to see that psychologist upon release from custody. Your NDIS package was renewed in February 2023 based on your ABI, it is likely to be ongoing.
R v Verdins
78In summary, you have been diagnosed with the following health conditions: acquired brain impairment with organic amnesic syndrome and dysexecutive syndrome, complex post-traumatic stress disorder, major depressive disorder, somatic pain disorder, stimulant use disorder and your range of intellectual functioning is borderline.
79Mr Ranjit on your behalf relies on all limbs of R v Verdins. The prosecution rightly conceded that the 2023 report of Ms Mynard provides evidence of a nexus between your mental health conditions and your offending behaviours.
80Ms Mynard describes your cognitive functioning in the lower than average ranges, impacted by your disruption to school, high level of traumatic experiences and head injuries. You have experienced psychosis and have had a very low mood for many years. Your insight into the interplay with your offending was low. She opines that your judgment has been impacted by your long‑term mental health issues with a heightened sense of threat and difficulty with self‑regulation and emotional sensitivities.
81You meet the criteria for complex post-traumatic stress disorder. This is related to your early trauma in childhood. Ms Mynard provides a good summary of the impact of your trauma both in childhood and since. She confirms those symptoms of complex PTSD include difficulty regulating your affective impulses such as anger and self-destructiveness, a chronic sense of guilt or responsibility, difficulty trusting people, hopelessness or despair, difficulty learning and having trouble developing your sense of self.
82The prosecution did not dispute that your moral culpability is reduced on account of your mental impairment and also the impact of your childhood, enlivening the principles of Bugmy v R. Your Counsel submits that that the second test of Bugmy v R applies to explain your recourse to violence as you have been exposed to extreme violence and alcohol abuse as a child.[4] I accept that submission although it is always a matter of degree.
[4] DPP v Hermann [2021] VSCA 160.
83Further, it was not disputed that the principles of both specific and general deterrence should be moderated to some extent.
84There is an interplay with your ongoing drug use. As such, none of those considerations are eliminated, merely moderated. Further I am mindful of the fact that those features of your presentation also increase the risk you pose to the community, as demonstrated by the serious offending here.
85I accept that your time in custody will be more burdensome given your various diagnoses and Ms Mynard’s opinion that you find it difficult to navigate the prison system and to cope with the containment of custody. I accept also that your mental health may deteriorate in that setting. Those considerations in my view work to moderate the non‑parole period I will impose.
86I accept also that the concern you have for your 13 year old daughter who is having physical and mental health struggles will weigh on you during your incarceration.
87You are currently remanded at the Metropolitan Reman Centre. You are employed as a billet and have undertaken some courses, attempting to utilise your time in custody well.
88Your family remains supportive and upon your release you intend to reside with your mother. Your brother and 16 year old daughter also reside there. You will continue to engage with NDIS and in my view the NDIS package could provide a significant change in your life by way of a raft of supports it will make available to you.
Plea of Guilty
89You pleaded guilty to this offending and you receive the benefit of that plea. It was not an early plea, however it has saved the community the cost of a criminal trial and has spared the victim from giving any evidence. I accept there is a significant benefit given Mr El-Zayat declined to make a statement or co‑operate with police.
90I accept also that the principles in Worboyes still apply and your plea should receive a palpable discount.
Remorse
91I also accept that there are some expressions of remorse now made by you and which are contained in the most recent report of Ms Mynard. I accept your counsel’s submission that I should view those general expressions of remorse through the prism of your cognitive impairment.
Prospects of Rehabilitation
92You have a lengthy and relevant criminal record dating back to 2000. Of significant concern are your numerous priors relating to driving matters, assaults reckless conduct endangering serious injury, drug trafficking, possession and use, firearm and cartridge ammunition possession, and breaches of court orders and bail.
93Of particular note are the significant number of priors relating to driving offences, including dangerous and negligent driving and failing to stop after an accident. Those matters do not aggravate the current offending but of course they are particularly relevant to the risk you pose and to your prospects of rehabilitation.
94You have been given a multitude of orders aimed at your rehabilitation, most of which you have breached, including a CCO breached by this offending. You have never had a parole sentence.
95You have two outstanding matters in the Magistrates’ Court.
Submissions of parties
96Your counsel concedes that a term of imprisonment with a head sentence and a non-parole period is warranted in all the circumstances. He submitted that I should reduce the non-parole period to allow you to be released on your first period of parole, in particular given the available structure of your NDIS support package.
Current Sentencing Practices
97I have taken into account current sentencing practices and a range of sentences in particular for causing serious injury recklessly. Those offences can be committed in a variety of ways. I have paid particular note to those related to driving. Counsel helpfully referred me to matters of R v Cropley[5] and DPP v Massey[6]. While those matters were of real assistance to me, as always there are differences between the offender and the offending. Ultimately I am required to impose a just sentence in all the circumstances and that is what I have endeavoured to do.
[5] R v Cropley [2009] VSCA 32.
[6] DPP v Massey [2008] VSCA 254.
98I wish to make clear that when I gave the sentence indication I made allowance for the moderation which follows applicability of the principles of Bugmy v R and R v Verdins. The neuropsychological report from 2010 and the 2017 report of Ms Mynard set out in detail your childhood trauma, your history of physical injury, in particular head injury and the diagnosis of an ABI, ongoing traumas into your adult years, your drug use and offending history and various diagnoses relating to your mental health such as PTSD, major depressive disorder, stimulant use disorder, somatic pain disorder and borderline ranges of intellectual functioning. In giving the sentence indication which I did, I made allowance for those mitigating factors. The more recent report of Ms Mynard confirmed those factors and allows me to conclude not just generally, but specifically in relation to this offending that there is a nexus to the offending which I am to sentence you for. As such, any further moderation of sentence is modest.
99I have formed the view that the circumstances of your offending mean an aggregate sentence is appropriate. That is each charge relates to the events of 11 January, including the theft of motor vehicle given you were driving the Ford Ranger during that event. As I have outlined, each of the summary charges works to aggravate the offending committed in Charge 1 and as such it would be artificial to separately cumulate portions of imprisonment for those offences.
100In relation to Summary Charge 8 where there is no imprisonment term attached I will impose a fine.
Sentence
101Mr Omar, the sentence I impose is as follows.
102On Charge 1 of Causing serious injury recklessly, Charge 2 of Theft, Summary Charge 5 of Committing an indictable offence whilst on bail, Summary Charge 6 of Driving whilst disqualified and Summary Charge 7 of Contravening a conduct condition of bail, you are convicted and sentenced to an aggregate term of 5 years and 2 months' imprisonment.
103I direct that you are to serve a minimum term of 3 years' imprisonment before becoming eligible for parole.
104I declare that you have served 259 days of pre‑sentence detention and that that period should be reckoned as having been served under this sentence.
105On Summary Charge 8 of Driving a vehicle without number plates affixed or displayed as required, you are convicted and fined $250.
106In addition, on Summary Charge 6, your licence is cancelled and you are disqualified from driving for 2 and a half years commencing today.
S 6AAA
107Pursuant to s6AAA of the Sentencing Act, that is but for your plea of guilty the sentence I would have imposed would have been 7 years' imprisonment with a non‑parole period of 5 years and 2 months' imprisonment.
Ancillary Orders
108There is an application for disposal and a draft order filed by the prosecution, I propose to make that order in the terms sought.
109COUNSEL: As Your Honour pleases.
110HER HONOUR: Are there any issues to raise, counsel?
111MR ELLWOOD: No, Your Honour.
112MR RANJIT: No, Your Honour, if Your Honour pleases.
113HER HONOUR: Thanks very much. We'll now adjourn, thank you.
114MR ELLWOOD: Thank you.
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