Director of Public Prosecutions v Panjshiri

[2019] VCC 1819

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00892

DIRECTOR OF PUBLIC PROSECUTIONS

v

NOOR PANJSHIRI

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	7 November 2019
CASE MAY BE CITED AS:	DPP v Panjshiri
MEDIUM NEUTRAL CITATION:	[2019] VCC 1819

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Churchill
For the Accused	Mr S. Kennedy

HIS HONOUR: 

1Noor Panjshiri you were found guilty after a jury trial of one charge of negligently causing serious injury.  This offence carries a maximum period of imprisonment of 10 years.  You further found guilty of two counts of supplying drug of dependence to a minor.  Each of these offences carries a period of imprisonment of 15 years.

2The facts on which you found guilty may be briefly stated.

3Since January 2009, you have been diagnosed as HIV positive.  Over that period, your viral load has been regularly monitored by your treating health practitioner, Dr Feathers.  For the years 2010 to 2015, your viral load was kept well under control by the constant adherence to the medication regime provided to you.  However between 2015 and 2017, your viral load fluctuated and increased.  By 21 June 2017, your viral load had increased to in excess of 50,000 copies per mL.  In fact, your load was measured at that time at 57,900 copies per mL.  On the evidence of Dr Edwina Wright, this was an extremely high load.  You were warned at that time that you posed a high risk of transmitting the virus to partners if you were to engage in unprotected penetrative sexual activity.

4At the time of your offending, the complainant Amber Phelps[1] was a 16-year-old girl living in secure welfare under the care of DHHS.  She had had a difficult childhood with much time spent in the care of DHHS.  Whilst in care, Ms Phelps formed a friendship with Ella Page[2], a 14-year-old girl, with whom it appears you were involved in a sexual relationship.  I note at this point that the Crown did not allege that you knew Ms Page to be under the age of 16 years.

[1] A pseudonym.

[2] A pseudonym.

5Ms Phelps told Ms Page that she wanted to use the drug ice.  Ms Page stated that she would be able to arrange it, but that she (Phelps) would have to exchange favours.  In a very frank VARE interview, Ms Phelps said that she was fully aware that by this, Ms Page meant she, Ms Phelps, would be expected to engage in sexual acts in exchange for the drug ice.  Ms Phelps stated that she accepted this arrangement.

6On the evening of 27 June 2017 Ms Phelps travelled to Dandenong.  There, she met you and Ms Page.  You took both of them back to your apartment.  After about 10 minutes of conversation, you pulled out a bag of the drug ice.  The drug was prepared in a distinctive pipe and used first by Ms Phelps.  The supply of ice to Ms Phelps on this and other occasions on the night of 27 June forms the basis of Charge 3.  It was then used by both you and Ms Page.  The supply to and use of ice by Ms Page forms the basis of Charge 4.

7After using the drug, you engaged in sexual activity with Ms Page.  I interpose, Ms Page did not give evidence at trial and you were not charged with any offence relating to that activity.  After a few minutes, you stopped activity with Ms Page and sat in a chair where Ms Phelps repeatedly performed oral sex on you.

8In the course of the evening, the three of you repeatedly smoked ice supplied by you.  Further, you alternated between sexual activity with Ella Page and with Ms Phelps.  In the course of activity with Ms Phelps, you commenced penile/vaginal sexual intercourse with her.  Ms Phelps stated that after about a minute, you commenced having penile/anal intercourse with Ms Phelps.  
There is no evidence that you ejaculated inside Ms Phelps during any of these activities.

9The finding of guilt on the charge of negligently causing serious injury means that the jury was satisfied that: 

(a) you were HIV positive;

(b) you knew that you carried the virus;

(c) you had not been adhering to your medication and you knew that your viral load was at a very high level;

(d) you had been warned only days before that you must not have unprotected sex with partners;

(e) you had been given a huge supply of condoms;

(f) you nevertheless engaged in sexual activity with the complainant, and you did not inform her that you carried the HIV virus, nor did you use protection during that activity; and

(g) through your actions, you transmitted the HIV virus to Ms Phelps.

10From all of this the jury was satisfied that you owed a duty of care to the complainant; that you breached the standard of care by your actions, and that your breach of the duty by your conduct fell so far short of the standard of care a reasonable person would have exercised, and involved such a high risk of serious injury, that it deserves criminal punishment.

11In all the circumstances, this is a very serious instance of the crime of negligently causing serious injury.  It is serious because you were armed with the knowledge of your condition; it was readily manageable; even with a high viral load you could have taken protection but you chose instead to engage in unprotected activity.  The circumstances in which the activity occurred are also serious: you knew that you were meeting the victim and it seems that you were going to supply her with ice to use.  It seems also that you expected (as the victim related) that sexual favours would follow.

12The virus you transmitted constitutes a serious injury because it will presently stay with the victim for life.  It requires daily medication and regular checks.  
On the current generally accepted medical view, the victim's life expectancy will be diminished by about 10 years.  Furthermore, she will be more susceptible to a range of illnesses and a deleterious conditions.

13Your actions must be met by principles of deterrence, condemnation and a measure of protection of the community.  The message must be sent:  
the community will not tolerate and must be protected from those who engage in such irresponsible conduct.  Your conduct is all the more reprehensible for the fact that its irresponsible nature was so readily preventable.

14Your actions must be met by a significant term of imprisonment.

15Moreover, even of themselves, each of the two charges of supply a drug of dependence to a minor are serious.  The circumstances of the commission of the offence in respect to these charges are serious, for at least in the case of the charge of the supply to Ms Phelps, you supplied the drug to a stranger; a young woman who was obviously much younger than you, in exchange for sexual favours.  The circumstances are only somewhat mitigated by the fact that Ms Phelps sought you out for the purpose of obtaining the drug to try.  
The behaviour is to be denounced and must also be met by stern punishment.

16I acknowledge the submission made by Ms Churchill, Crown prosecutor, who appeared on the plea, who stated that this offence may be committed in a wide variety of circumstances.  I further acknowledge receipt of the Sentencing Advisory Council snapshot 2013 to 2018 in relation to the commission of this type of offence.

17I turn now to your personal circumstances.

18You are 37 years of age and you were born in Afghanistan on 15 May 1982.  You are one of 11 or 12 siblings.  Your parents are still both alive.  You were educated in Afghanistan until the age of 16, and you came to Australia at age 17 on a protection visa.  You remained on that visa for many years.

19Since arriving in Australia, you have worked variously as a truck driver; including as an owner driver, as a restaurant owner serving Afghani cuisine, as a construction supervisor and in a number of other roles over your time here.  I accept that you have been constantly employed.

20In your time in Australia, you have also had a number of significant relationships, three of which resulted in marriage.  Unfortunately each of those marriages ended.  You do however have a son aged 18, and another son aged about 15 or 16 (it seems), and approximately four more children aged between about 11 and 14 years from your various relationships.

21In your adult life, you have been a long time cannabis user, and you have at times resorted to alcohol, although the psychologist Bernard Healey noted that you have abstained from alcohol for a long time now.  You had, self-evidently, been a user of other drugs; telling Mr Healey that you smoked cocaine, and of course at the time of this offending you were using the drug ice

22You have a significant prior criminal history, dating back to 2005.  You have numerous convictions for assault-related offences, for false imprisonment, fail to answer bail and for breaches in family violence intervention orders.

23The psychological report tendered on your plea noted your full scale IQ at 81.  This means that 90% of yours peers would perform better in the same testing.  Perhaps of more concern, Mr Healey noted a paranoid trend in you thinking, and reported that you had moved units in prison 20 times since your imprisonment on these matters.  Mr Healey concludes that you are a rather seriously disturbed man, mentally and emotionally, and that you have an underlying psychotic state.

24Mr Kennedy submits that whilst your offending must inevitably be met by a period in custody, I should consider imposing a longer than usual parole period to ensure that you receive adequate supervision and support upon your eventual release back into the community.  Mr Kennedy points to the report of Mr Healey and the earlier report of Dr Nicholas Owens psychiatrist, to make good his submission that you have had long-standing mental health issues which have not been particularly addressed since you were remanded in custody.  Moreover, Mr Kennedy submits, whilst falling short of making a Verdins submission, that your time in custody been made more difficult by your obvious mental health issues and by your cultural, language and family isolation, notwithstanding that you have family in Australia and that you have lived here some 20 years.

25I note that you are estranged from your Afghani family members that are present in Australia and in fact, they have suggested to you that suicide was a viable alternative for you.  I note that you have had no contact with your family in Afghanistan in some time.

26In my view, there is some force in Mr Kennedy's submissions; although I make the observation that deterrence remains the dominant sentencing factor in the sentencing consideration for these matters. I note also that there is an absence of remorse, and that the matters personal to you can play only a limited role in the sentences I must impose upon you.

27As the prosecutor on the plea Ms Churchill (who was not the trial prosecutor) submits that I should fall short of making a Verdins finding in mitigation of your sentence.  Instead, I will consider only that your time in prison has been indeed difficult.

28Ms Churchill was diligent in her research.  She provided me with cases from Western Australia on the question of infection with the HIV virus.  The first case of Houghton is of no real use.  It is now too old, and the advances in medicine have made the pronouncements on sentence irrelevant, and relating to time past.  The case of Palmer [2018] WASCA 225 is a more current case and relates to a sex worker infecting a client with the HIV virus after engaging in unprotected and anal intercourse. There are differences between this case and Palma not the least of which are the elements of the offences to be proved in each case are different.  Nevertheless, I have read the decision but ultimately, the sentence I have arrived at is based upon the considerations I have determined arise from the objective gravity of your offending, the need for deterrence and extent to which I can have regard to the matters personal to you.

29The reports of Bernard Healey and Dr Owens (notwithstanding its age) are troubling.  Overall, I consider your prospects for rehabilitation to be rather poor.  In this respect, I agree with the submission made by Mr Kennedy that you should be provided with an opportunity for a longer than usual period of parole.

30As I have already outlined, this must be viewed as a serious instance of each of the offences of which you have been found guilty.

31On Charge 1, you are convicted and sentenced to a period of four years and six months' imprisonment.  On Charge 3, you are convicted and sentenced to nine months' imprisonment.  On Charge 4, you are convicted and sentenced to eight months' imprisonment. 

32I order that six months of Charge 3 be served cumulatively.  I order that four months of Charge 4 be served cumulatively on the base sentence and each other sentence.  The total effective sentence is therefore one of five years and four months' imprisonment.  I under that you serve a non-parole period of three years and three months' imprisonment.

33I reckon the period of pre-sentence detention of 832 days excluding today reckoned as already served.  I will make the disposal order in chambers that has been sought.

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