Director of Public Prosecutions v Rahimzadeh
[2018] VCC 946
•22 June 2018
RA
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication | |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-17-01912
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MEYSAM RAHIMZADEH |
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JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 and 18 June 2018 | |
DATE OF SENTENCE: | 22 June 2018 | |
CASE MAY BE CITED AS: | DPP v Rahimzadeh | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 946 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence: One charge of aggravated burglary and one charge of intentionally causing injury-offender attended at female victim’s home and once there acted out of jealousy when he discovered that she was in a relationship with the male victim-use of a knife to cause injury to male victim-early plea-offender aged 30 at time of offending and has no prior or subsequent criminal history
Legislation Cited: Crimes Act 1958; Sentencing Act 1991; Migration Act 1958
Cases Cited: R v Verdins (2007) 16 VR 269; DPP v Meyers (2014) 44 VR 486; Hogarth v The Queen (2012) 37 VR 658; Bradshaw v The Queen [2017] VSCA 273; Boulton v The Queen (2014) 46 VR 308; Guden v The Queen (2010) 28 VR 288; Konamala v The Queen [2016] VSCA 48
Sentence: Combination sentence; 660 days’ imprisonment with a 2 year community correction order with conditions requiring, inter alia, the performance of 200 hours of unpaid community work. Pre-sentence detention of 480 days declared
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr C McConaghy (Plea) Mr R Barry (Further Plea and Sentence) | Office of Public Prosecutions |
| For the Accused | Mr C Farrington (Plea) | Emma Turnbull Lawyers |
HIS HONOUR:
Introduction
1 Meysam Rahimzadeh, you have pleaded guilty to an indictment containing two charges.
2 Charge 1 alleges an offence of aggravated burglary and carries a maximum penalty of 25 years’ imprisonment.
3 Charge 2 alleges an offence of intentionally causing injury and carries a maximum penalty of 10 years’ imprisonment.
4 The circumstances in which you came to commit those offences are set out in the detailed typed prosecution opening dated 23 January 2018, a copy of which was tendered as exhibit A on the plea hearing.
5 I have had regard to that opening when determining the appropriate sentence in this case. It is sufficient, for present purposes, to provide the following briefer outline.
Circumstances of the offending
6 The offending occurred on 27 February 2017, at the Reservoir home of a woman named Shirin Soheili. You were 30 years of age then and turned 31 in January of this year.
7 At an earlier point in time, you and the two victims lived together as ‘housemates’ at an address in Avondale Heights.
8 In late January 2017, the female victim, Ms Soheili, moved to the subject property in Reservoir, where she lived alone.
9 During February 2017, she and the male victim, Mr Vasigeh, developed a close friendship which then became a relationship. On 26 February 2017, he stayed with her at Reservoir for the first time.
10 At approximately 10:00pm on 27 February 2017, you sent Ms Soheili a text message advising her that you were coming to her home in order to return some of her property and collect your iPad which she had taken from the Avondale Heights address.
11 The two of you exchanged numerous text messages. In those she sent you, she made it clear that she did not want her property back and would arrange for a taxi to return your iPad to you at Avondale Heights.
12 Moments later, you attended at her front door and began knocking on the windows and pulling at the door. As you were doing so, you yelled “Open the door, open the door. I can hear you are with another man. I don’t care who he is, I don’t care if you are fucking, I just want my iPad and I am leaving.”
13 She then sent you a text message to the effect that you were causing trouble and should leave. Your reply text was unresponsive and merely referred to the fact that you could hear a man’s voice.
14 Ms Soheili then attempted another strategy by calling out to you. She indicated to you, in effect, that if you moved away from her doorway, she would put the iPad outside the front door for you to collect and then leave.
15 As she did so, she noticed that a bag containing her property had already been placed outside the front door. As she had promised to do, Ms Soheili placed the iPad immediately outside the front door. She then closed the door.
16 A few minutes later, you returned to that area and smashed the glass window next to the front door with a metal tow bar tongue that you had just retrieved from your vehicle.
17 As a result, Mr Vasigeh went to the front door to investigate. When he opened it, he saw you using that item to remove broken glass fragments from the window.
18 On seeing Mr Vasigeh, you struck him with that metal object to the right side of his head, causing him to fall backwards onto the floor.
19 Following that, you entered the premises through the already opened front door and then approached and kicked Ms Soheili to the legs and stomach, causing her to fall down. I note that you are not charged in respect of this conduct towards Ms Soheili and that it has been included in the prosecution opening, without objection, so as to provide a full and realistic context to the charged offending. I make it clear now, that you will only be sentenced for the offending with which you are charged, not for this uncharged conduct towards Ms Soheili or for the alleged threat that you made to her a short time later.[1]
[1] As to which, see [21] of these sentencing reasons.
20 When he saw what you did to Ms Soheili, Mr Vasigeh punched you three times to the back of the head. A wrestle between the two of you then commenced and it continued until Ms Soheili was able to remove the tow bar tongue from your hand.
21 Undeterred, you then picked up a pair of scissors from a table and used them to threaten her. She and Mr Vasigeh then wrestled with you and managed to take the scissors from your hand. Mr Vasigeh then ripped your jumper and wrapped it around your neck to prevent you from struggling.
22 At that point, you gave voice to your feelings of jealousy towards Mr Vasigeh and picked up a small knife which you used to stab him in the neck. When he told you he would call the police, you responded by saying “… I’m going to say you hit me”. After saying that, you stabbed yourself in the back of the head.
23 When you then attempted to stab him in the face, he received a cut to his index finger as he raised his hand to protect himself. As that occurred, he felt a loss of sensation to that part of his hand.
24 You then proceeded to stab him with the knife for a third time, in the left shoulder.
25 As you then began to turn your attention back to Ms Soheili, Mr Vasigeh pushed you in the back, causing you to fall onto the floor. When he ran to the front door to seek help, you chased after him.
26 As the two of you got outside, numerous neighbours appeared and indicated that they had already called the police.
27 Police and ambulance officers then arrived. Both you and Mr Vasigeh were taken to hospital so that any injuries could be assessed and treated.
28 When you were discharged from hospital in the early hours of the following morning, you were taken to Mill Park Police Station and offered the opportunity to participate in a record of interview. As was your legal right, you declined to be interviewed.
29 Mr Vasigeh was not discharged from hospital until 3 March 2017.
Pre-sentence detention
30 Mr Rahimzadeh, I note that you have remained in custody since you were first remanded on 27 February last year. As at the plea date of 8 June 2018, you had spent a total of 466 days in pre-sentence detention for this matter. Now, the period is 480 days, not including today.
Timing of guilty plea
31 The parties agree that this matter resolved at an early stage. At the committal hearing on 18 September 2017, and prior to the calling of any witnesses, you indicated your willingness to plead guilty to the charges on which you are now indicted. You are entitled to and will receive a sentencing discount on account of the course that you have taken. The extent of that discount will be made clear later in these sentencing reasons.
Victim Impact Statements
32 Each of the victims have chosen to make a victim impact statement. They contain no real surprises. Predictably, each of them have been significantly impacted by your criminal conduct.
33 The statement from Ms Soheli was sworn on 14 February 2018 and tendered as exhibit C. In that document, she indicates that she has experienced depression and ongoing nightmares. She is required to take anti-depressant medication and, unfortunately, the psychotherapy that she underwent has been of no assistance. She feels unsafe in her own home but cannot afford to move. She no longer trusts people.
34 In my view, those consequences are readily explicable by the offending comprised in each of the charged offences. The sanctity of her private residence was breached by an unwelcome and armed intruder who, in her presence, launched a nasty attack on an innocent man with whom she had recently formed a relationship.
35 The statement from Mr Vasigeh, was also sworn on 14 February this year. It was tendered as exhibit B. In that statement, he indicates that he can no longer work as he once did; he is required to take strong pain relief medication and is depressed and sleep deprived. He, like the female victim, has ongoing nightmares as a result of what you did.
Exhibit D: Hospital notes relating to Mr Vasigeh
36 During the plea hearing, and without objection, the prosecution tendered the hospital notes relating to Mr Vasigeh’s injuries and treatment[2]. The doctor who examined him at the Royal Melbourne Hospital noted that he was in pain and had sustained a 1 cm x 3 cm wound to the left side of his neck, a 2 cm x 2 cm open wound to his shoulder, and a deep 2.5 cm x 2.5 cm wound to his right index finger with paraesthesia. Mr Vasigeh was prescribed analgesia medication for the pain and admitted for ongoing assessment and treatment, including proposed plastic surgery.
No criminal history
[2] Exhibit D.
37 Mr Rahimzadeh, you fall to be sentenced by this Court as a 31 year-old, first time offender. You have no previous or subsequent findings of guilt or criminal convictions and there are no other charges pending.
Personal circumstances
38 I turn now to your personal circumstances.
39 You were born and raised in Tehran, Iran. You are the second youngest of 8 children in your family. You sought asylum in Australia by fleeing Iran with a brother when you were 21. Your parents and 5 of your siblings remain living in Iran. Your eldest brother was executed in 2015 following his opposition to the Iranian political regime.
40 You suffered a number of serious setbacks as you were growing up. You contracted polio when quite young and that led to bullying and humiliation at school and problems with self-esteem. Furthermore, you were sexually abused by a man who lived in the local area where you lived. That occurred over a number of years from when you were about 6 years of age. In the course of that abuse, you were threatened with needles. Sadly for you, your mother refused to believe you initially and your father misinterpreted it as an indication that you were homosexual. It brought shame on the family. You were physically disciplined by them at the time and even now, your father refuses to accept your account of what occurred. When it became apparent that the culprit had abused other children, you were believed and the culprit was summarily rounded up and publicly executed. It was treated as some form of public spectacle. In a misguided act by others, you and the other young victims were made to witness that publicly sanctioned killing. In your case, that only exacerbated the mental health issues you were already experiencing; indeed it added an extra layer to what was already a complex problem.
41 You were educated in Iran. You were not academically inclined and ceased all formal schooling when you were about 15.
42 On leaving school, you worked with your father in PVC construction. You found it difficult to continue working in Iran, however, on account of the political unrest and your active opposition to the political regime.
43 You fled Iran using forged travel documents. On arrival in Jakarta, you and your brother paid people smugglers to bring you to Australia. The resultant boat trip was dangerous and, ultimately very tragic. The boat broke down in treacherous seas and ended up being dashed against rocks on the coast of Christmas Island. Tragically, it sank, killing 35 of those on board. You were one of the lucky ones rescued by Australian Navy personnel.
44 Initially, you were subject to immigration detention on Christmas Island. After 6 months, you spent a short time at Maribyrnong Detention Centre. You were then granted refugee status. With the assistance of Red Cross, you and your brother obtained housing in Glenroy. In July 2011, you were granted permanent residency. When you committed these offences, you were in the process of applying for Australian citizenship.
45 I note that under the relevant provisions of the Migration Act 1958, any non-citizen of this country who is convicted of an offence and is sentenced to a term of imprisonment of at least 12 months is liable to be deported.[3] I will say something more about this issue later in these sentencing reasons. For completeness sake, I note that your brother is currently being held in immigration detention in NSW and also liable to being deported back to Iran.
[3] See ss. 200 and 201.
46 Following your own release from immigration detention, you were able to obtain employment. You have worked in various roles, including as a cleaner, an Uber Driver and at a Kebab shop. I note that there are residual effects from polio; for example, if you engage in strenuous exercise, your hands shake.
47 You told Dr Cunningham that you also completed certificates in cleaning and cooking but could not remember where you had undertaken those courses.
48 You have had one significant relationship. That woman gave birth to your son in 2015, shortly after the two of you separated. You have no real contact with either of them.
49 You have a history of illicit substance use. You commenced to smoke methamphetamine about three years before you committed these offences. In the history you provided to Dr Cunningham, you also referred to having used cannabis and cocaine when increasingly depressed. On your account, you had smoked significant amounts of the drug methamphetamine in the period leading up to the incident which occurred at the home of Ms Soheili. As a result, you had not slept for a number of days.
Context and reasons for offending
50 As appears from the prosecution opening, Mr Rahimzadeh acted as he did from feelings of jealousy. Whilst I note that the female complainant and he differ as to whether there was ever any closer relationship than housemates or friends, it doesn’t really matter in the sense that the prosecution accept that he perceived that there had been and he became very upset when he learnt that the two victims were in an intimate relationship. I refer to that fact, not because it provides any justification or excuse for what Mr Rahimzadeh did on that day, but only so as to provide some explanation and context for it. What is also noteworthy is that even on Mr Rahimzadeh’s account, any relationship that had existed between them was at an end by the time that this incident occurred.
51 The fact that he only decided to commit the offence of aggravated burglary and to assault the male victim after he had already attended at the female victim’s home for a different purpose, is relevant to the question of the extent of any pre-meditation and to any attempt to compare this case with some other examples of this type of offending. In short, unlike some other cases, here there was only a very brief period of contemplation by the offender. It must have been a matter of only a few minutes or so at most. It was only then that Mr Rahimzadeh decided to return to his vehicle to obtain the metal tow ball tongue which he used moments later to smash the window and then launch the assault on Mr Vasigeh.
52 I should also note that his decision to act as he did was also influenced by the fact that he was drug affected and sleep deprived at the relevant time. The fact that he had been using methamphetamine in the preceding days and had not slept was, in my view, likely to have had a disinhibiting effect on him. Again, that provides no justification or excuse for his criminal behaviour. It merely goes some way towards explaining it.
Letter from Dr Tahmasebi
53 In a letter dated 23 March 2017, your GP since 2014, Dr Tahmasebi, notes that you have suffered from depression and anxiety since you arrived in Australia, for which you have been prescribed anti-depressant medication and referred for specialist mental health treatment and counselling.[4]
Report of Dr Assadi
[4] The letter was tendered as exhibit 1 on the plea.
54 One of the specialists to whom you were referred by your GP was the consultant psychiatrist, Dr Seyed Assadi. Dr Assadi saw you on 8 December 2015 for the purposes of a psychiatric assessment and management plan. It is clear from Dr Assadi’s report of the same date, that you provided a full history of your background and personal circumstances, including the history of symptoms of anxiety, depression and poor self-esteem that you had been experiencing for some time.[5]
[5] The report was tendered as exhibit 2 on the plea.
55 Dr Assadi concluded that you were suffering from a generalised anxiety disorder as well as clinical depression. On the day you were assessed, Dr Assadi provided pyscho-education and discussed diagnosis and treatment. Your medication was changed and increased.
56 Dr Assadi recommended a course of cognitive behaviour therapy to help you identify and correct your negative thoughts. You were also encouraged to follow up with the Persian speaking psychologist to whom you had already been referred.
Reports of Dr Cunningham
57 You were assessed by the forensic psychologist, Dr Cunningham, on 9 May 2017 for the purposes of a pending bail application. The resultant report is dated 12 May 2017.[6]
[6] That report was tendered as exhibit 3 on the plea.
58 Dr Cunningham noted the fact that you had been prescribed anti-depressants for the past year. He noted that you were isolated in gaol, in part because of language difficulties. You were very depressed and continued to suffer flashbacks relating to the Christmas Island tragedy in which some of your friends perished. In light of your distressing recollections of past trauma, it is unsurprising that Dr Cunningham is of the opinion that you meet the criteria for Post-Traumatic Stress Disorder (“PTSD”). He considered that you were pre-disposed to development of this disorder by the struggle of your early childhood and teenage years. The significant trauma associated with the boating tragedy precipitated the disorder. In his view, you remained traumatised.
59 In terms of recommendations, Dr Cunningham believes that you would benefit from psychological intervention to treat your trauma. That underlying trauma makes it more difficult for you to cope with additional traumas and stress. The fact that your brother is in immigration detention and facing deportation is perhaps a good example. Since you have used drugs as a means of relieving stress, Dr Cunningham also recommends drug and alcohol counselling.
60 In terms of your current offending, Dr Cunningham noted the particular context in which it occurred and the fact that you are not by nature a person who is prone to act violently. He sounds a note of caution, however, by indicating that your low risk of any future violent offending would be increased were you to revert to drug use and fail to engage in trauma treatment. In his view, protective factors would include abstinence from drug use and engaging with psychological intervention.
61 Of relevance to the fifth and sixth principles in Verdin’s case, Dr Cunningham concludes his report by expressing the following opinion in respect of Mr Rahimzadeh:
“Ongoing incarceration would likely aggravate his trauma through exposure to further trauma and relative isolation”.
62 In May of this year, Dr Cunningham was asked to undertake a psychological assessment of Mr Rahimzadeh and, for that purpose, interviewed the accused by video-link on the 18th of May.
63 In the resultant report of 1 June,[7] Dr Cunningham noted that you had been subjected to bullying and assaults from Lebanese prisoners because of the muscle tremors you continue to experience as a result of your polio condition. By way of confirmation of one of the opinions he expressed in the first report, Dr Cunningham noted how the prison experience had played out for you since you were first assessed by him in May 2017. As he states:
“Mr Rahimzadeh’s mental state had deteriorated since my initial assessment. His paranoia and distress had escalated. In my opinion, he continued to meet the criteria for PTSD.” [8]
[7] That report was tendered as exhibit 4 on the plea.
[8] Exhibit 4, page 2.9.
64 A little later, Dr Cunningham notes the following:
“He has had a difficult time in prison being bullied and targeted by other prisoners.” [9]
“In my opinion, Mr Rahimzadeh is having a more onerous experience of imprisonment…[T]he threat of the prison environment is aggravating his paranoia. He would benefit from engagement with prison psychiatric services to monitor his mental state and protect him from further deterioration.” [10]
[9] Ibid, page 3.2.
[10] Ibid, page 3.5.
65 He noted your expressions of remorse for having acted as you did towards the two victims; you became jealous and felt confused, upset and betrayed when you discovered the presence of the male victim in the circumstances that you did.
66 Dr Cunningham saw no direct connection between your PTSD and the offending in which you engaged. Rather, it pre-disposed you to developing psychotic symptoms when abusing methamphetamine. Prone to angry outbursts and irritability, your use of methamphetamine would, in his opinion, have caused further disinhibition and increases in aggressive behaviour.
67 In addition to the PTSD diagnosis, Dr Cunningham also concluded that you met the criteria for Substance Induced Psychotic Disorder.
68 On your release from custody, Dr Cunningham believes you would benefit from gaining family support and engaging with suitable psychiatric and psychological treatment.
Character references
69 Three character references were tendered at the plea hearing.[11]
[11] Collectively, as exhibit 5.
70 A friend of some 7 years standing, noted that you have taken personal responsibility for what you did and shown remorse. He considers your offending behaviour to have been out of character. He has seen a more caring side of your nature in the way you have helped him and continued to offer support to your family in Iran.
71 Another friend who has known you for a similar length of time, expressed similar sentiments and was equally shocked on learning of your offending.
72 Both of those friends have offered you their unqualified and continuing support.
73 A past employer noted that when you worked for their business between 2014 and 2016, you were one of the hardest working employees they had ever had. Like your friends, they had not known you to be violent or criminally inclined.
Matters in mitigation
74 Your counsel, Mr Farrington, was able to rely on a number of matters in mitigation on your behalf, some of which I have already referred to.
75 As a result of your early plea, you have saved the community from the time and cost of a contested committal and trial and, more importantly, spared each of the victims from the ordeal of having to give evidence about this unfortunate episode.
76 In all of the circumstances, including your decision to take that course at the stage that you did, and the sentiments that you expressed to Dr Cunningham, I am prepared to accept that you are remorseful for your criminal conduct.
77 Accordingly, you are entitled to a significant discount in your sentence.
78 You have no criminal history whatsoever.
79 You have experienced numerous episodes of trauma in both childhood and later years, including serious illness, sexual abuse, witnessing the killing of your sexual abuser as well as politically motivated atrocities and the sinking of the boat in which you and a number of friends were passengers.
80 In addition, you have also endured circumstances of deprivation, abuse and other social disadvantage.
81 On a positive note, you have endeavoured to use your time on remand productively. As shown by the documents tendered jointly as exhibit 6, you have been offered work as both a laundry billet and a kitchen billet. On my understanding, you have worked in both capacities.
82 But, your experience of serving time in custody has, as was expected to be the case, been more onerous than other prisoners on account of a number of factors, including your PTSD and exposure to additional trauma, your social isolation and language difficulties, the physical sequale from your polio, and your lack of previous experience with the criminal justice system and adult gaol environment. I accept that limbs 5 and 6 of Verdins have clearly been engaged in this case.
83 In addition, your time in custody has been made more difficult by the concern you have experienced, and will continue to experience, in relation to your uncertain future. You are worried, understandably so, that as a result of being sentenced for this matter, you may be deported and forced to return to Iran. In that context, you have what I accept are genuine concerns for your personal safety. I am prepared to accept all of those matters. However, as explained by the Court of Appeal in Guden v The Queen,[12] in the absence of an evidentiary basis for establishing the strong likelihood of actual as opposed to potential deportation, the sentencing Court can go no further.
[12] (2010) 28 VR 288
84 Even in the context of the effect that the prospect of deportation may have on an offender’s state of mind, the significance will vary from case to case. A sentencing judge must have regard to the particular circumstances of the offender that they are sentencing. This issue was helpfully explained in the later appellate decision of Konamala v The Queen.[13] The relevant observation was expressed by the Court of Appeal in the following terms:
Self-evidently, whether the prospect of deportation in a given case will make the burden of imprisonment more onerous will depend on the prisoner’s personal circumstances. It is an unhappy fact that many offenders come to this country for the sole purpose of criminal activity. They have no interest in making Australia their home. For offenders such as those, deportation to their country of origin may impose no burden upon them at all. Indeed, deportation might be something of a blessing, particularly where language and culture have caused them to be isolated. On the other hand, the prospect of deportation might be a severe additional punishment for an offender who had aspired to make Australia his or her home, particularly if the offender has a spouse, children or other family resident in the country, or has other ties to the Australian community.[14]
[13] [2016] VSCA 48
[14] Ibid, at [34] (the Court) (Maxwell P, Redlich and Priest JJA).
85 In this particular case, the significance of the concern that Mr Rahimzadeh has while in custody, revolves around the potential for a lost opportunity to settle permanently in this country. He did not come here to offend; he came here to flee the political situation in his home country and the risks that he believed he faced if he remained there. Whilst he has no family here other than a brother who also faces possible deportation, he does have a number of friends and other supports. It is of some relevance that he has a large family network back in Iran, but I do not overlook the strained relationship he has with some members, including his father. Nor do I ignore his concerns about his own safety.
86 At 31, you are still a relatively young man for whom rehabilitation is a worthy objective, Mr Rahimzadeh. All the more so when it would seem that your current offending appears to be out of character and explained, to some extent, by your drug use.
87 You have some family and community support and now have the offer of an address to live in Footscray on your eventual release from custody.[15]
Gravity of the offending
[15] This fact and the details were communicated to the Court via an email from Mr Rahimzadeh’s counsel on 19 June 2018.
88 Apart from matters personal to you, Mr Rahimzadeh, I must also have regard to a number of other sentencing considerations, one of which is the gravity of the offences for which you now fall to be sentenced.
89 The offence of aggravated burglary is an inherently serious offence, as is amply demonstrated by the very high maximum penalty that Parliament have fixed, 25 years’ imprisonment.
90 The approach to be taken when assessing the objective gravity of any particular offence, and the relevant considerations when undertaking such a task, were helpfully outlined by the Court of Appeal in DPP v Meyers.[16] I have had regard to those matters insofar as they are relevant to this case.
[16] (2014) 44 VR 486.
91 The particular offence that you committed has some serious aspects to it although in other respects it is distinguishable from more serious examples of confrontational aggravated burglaries, such as that concerned in Hogarth v The Queen[17] In particular, your offending was fairly spontaneous and did not involve multiple offenders or a forced entry.
[17] (2012) 37 VR 658.
92 Whilst you did not plan to commit the offence well in advance of doing so, the fact is you knew that the female victim did not want you at her address at all. As with many offences of this type, you acted out of anger and jealousy and while drug affected. It was committed at night time and at a residential home in which the female victim was entitled to feel safe. Although you did not force entry, that is somewhat fortuitous. You had commenced to do so by breaking the window but then took advantage of the opportunity that presented itself when the male victim opened the front door. At the time of entering, you well knew that there were two occupants inside. And, as is clear from the framing of the charge in the indictment, you entered whilst armed and with the intention to assault.
93 The offence of intentionally causing injury is also an intrinsically serious offence as the elements and the applicable maximum penalty would suggest.
94 The offence that you committed is a relatively serious example, notwithstanding that the injuries sustained by the victim are not at the higher end of the spectrum of the range of injuries that can be encompassed by such a charge. Your attack on the unfortunate victim was completely unprovoked and nasty. It involved the use of two weapons, each of which was capable of causing very serious injury indeed, particularly given that you directed some of the blows to the victim's head and neck area. Indeed, you and he are very lucky that the injuries he sustained were not far worse. That said, they were bad enough. It was a callous and persistent attack on a defenceless man who was, in part, simply trying to protect the female victim.
95 It is relevant to note that your offending has had a serious and lasting psychological effect on both victims, and in Mr Vasigeh’s case, a physical and financial effect as well. In each of their cases, their quality and enjoyment of life has been diminished.
Relevant Sentencing Principles
96 In this case, general deterrence and denunciation are obviously important sentencing considerations. By the sentence that it imposes today, this Court must seek to dissuade other people from acting violently while motivated by feelings of jealousy and anger. And, it must condemn such criminal conduct in strong terms.
97 Given the nature and seriousness of this offending, specific deterrence is also relevant. It does not, however, need to be given the same emphasis as some other sentencing considerations. This appears to have been an aberration on Mr Rahimzadeh’s part and I have no doubt that the prosecutorial process and being held on remand have already achieved a measure of personal deterrence in his case.
98 For similar reasons, protection of the community, while relevant, is not a particularly weighty consideration.
99 However, it should not be forgotten that, as Dr Cunningham noted, the risk posed by Mr Rahimzadeh is linked, to some degree, with whether he is capable of abstaining from further drug use in the future. That is not a mere academic consideration.
100 Mr Rahimzadeh must be justly punished for the offences that he committed on this occasion. Notwithstanding his age and previous good record, the seriousness of that offending demands that he be sentenced to an immediate term of imprisonment. Such a disposition is also necessary if this Court is to achieve the necessary degree of general deterrence and adequately denounce the criminal conduct on behalf of the community.
101 Totality considerations must also be given effect to. Whilst each of the offences are discrete in nature and involve separate criminality and different victims, the fact remains that both offences were committed within a very short period and during a single episode of offending.
102 The principle of parsimony must also be considered and applied. Section 5(4C) of the Sentencing Act 1991 gives statutory effect to that principle by requiring the court to consider whether the purposes of sentencing may be met by an appropriately conditioned community correction order before imposing a sentence that involves the confinement of an offender.[18] In this case, as each of the parties recognise, some period of immediate imprisonment is unavoidable given the gravity of the offending. However, a combination sentence should be considered, if appropriate, as it is the least punitive option short of imposing a head sentence and non-parole period, and it has the advantage of a date certain release into the community on an order that is designed to provide rehabilitative focused conditions as well as a further measure of punishment.
[18] In this regard, see the guideline judgement in Boulton v The Queen (2014) 46 VR 308, 311, 330-3, 335, and 337-8.
103 This Court must also have regard to the offender’s age and prospects for rehabilitation. Mr Rahimzadeh is, as I have already noted, still a relatively young man. He has faced much adversity in his life to date and is in real need of professional counselling and treatment for his drug and mental health issues. He has people willing to support him and a proven capacity to obtain and maintain work. Any attempt to gauge his prospects of rehabilitation must be approached with some caution, however. In the end, doing the best I can with the information provided, I have concluded that those prospects are good.
104 I must and do have regard to current sentencing practices in relation to the offences for which Mr Rahimzadeh now falls to be sentenced.
105 The most recent sentencing snapshot for the offence of aggravated burglary is now somewhat dated. It summarises sentencing trends in the higher courts in Victoria during the period 2010-11 to 2014-15.[19] During that period, a total of 671 offenders were sentenced for a principal offence of that type. Of those, 71% were given an immediate custodial sentence. Imprisonment terms ranged from 2 months and 6 days to 6 years and 9 months, while the median length of imprisonment was 2 years and 6 months.
[19] Sentencing Snapshot No. 184, published in June 2016.
106 Such sentencing statistics are only ever of limited use on account of the important factors that are not disclosed; matters such as the plea entered, any aggravating and mitigating factors, and the personal circumstances of the offender, including the nature and extent of any criminal record. In this instance, I further note that the statistics are now somewhat aged in nature and may involve some cases that pre-dated Hogarth’s case.
107 I have also noted the case summaries for the offence of aggravated burglary published by the Judicial College of Victoria, which covers the period from 2013 to the present. While the information included in those summaries goes well beyond mere statistical data, the use to which such information can be put is still limited.
108 As the case of Bradshaw v The Queen[20] demonstrates, however, not every offence of aggravated burglary must be met with a custodial sentence. Indeed, as the tables of cases attached to that decision illustrate, in an appropriate case, a stand-alone community correction order may be appropriate to meet all of the sentencing requirements in a given case.
[20] [2017] VSCA 273.
109 What is called for is individualised justice through a process of instinctive synthesis. In the end, I must sentence Mr Rahimzadeh based on the particular circumstances of the case at hand rather than from a starting point that a very substantial sentence is called for simply because this case involves a confrontational aggravated burglary. What is required is a focus on the circumstances here present, both as to the offending and the offender.
Sentencing Submissions
110 In his submissions on sentence, defence counsel urged this Court to impose a combination sentence; that is a period of immediate imprisonment followed by release on a properly conditioned community correction order. He pointed to a number of conditions that could assist in facilitating Mr Rahimzadeh’s rehabilitation, including supervision, drug assessment and treatment, mental health assessment and treatment, and undertaking offender behaviour programs. Mr Farrington submitted that such a course was properly open to this Court, particularly in light of the period that Mr Rahimzadeh has already spent in custody on remand for these charges.
111 In reply, Mr McConaghy, counsel who appeared on behalf of the Director at the plea hearing, emphasised the seriousness of this offending and submitted that it called for a significant term of immediate imprisonment that necessitated some further time to be spent in custody beyond the period that had already been spent on remand. However, whilst the prosecution submitted that the offending clearly called for a custodial sentence, they did not take issue with the defence submission that a combination sentence was open. That is, the prosecution conceded that the Court would be sentencing within the available range if it were to impose a sentence of imprisonment greater than the period already served on remand in combination with a suitably conditioned community correction order.[21]
Analysis
[21] This concession by the prosecution necessarily incorporated a ceiling as to the length of the term of imprisonment as section 44 (1) of the Sentencing Act 1991 states that a combination sentence may only be imposed if the sum of all of the terms of imprisonment to be served (after deduction of any period of pre-sentence detention) is one year or less. Thus, the maximum period of imprisonment allowed for by the prosecution is 845 days (845 minus the PSD of 480 equals 365 days or 12 months).
112 In the end, after carefully considering all of the relevant sentencing considerations, I have decided to opt for a combination sentence. Such a disposition would still represent a significant degree of punishment and give adequate weight to all of the other relevant sentencing principles that this Court has to apply. It should also provide Mr Rahimzadeh with some incentive to start to work positively towards his release during the remainder of his sentence.
113 I note that Mr Rahimzadeh has been assessed by Corrections Victoria as being suitable for a community correction order. I consider that the recommended conditions in addition to the core conditions attached to any such order are appropriate. They include supervision, assessment and treatment for drug use or dependency and mental health, undertaking programs to reduce the risk of re-offending and the performance of unpaid community work.
Sentence
114 After balancing and weighing the relevant sentencing considerations in your case as best I can, I have decided to sentence you as follows Mr Rahimzadeh, providing you consent.
115 In respect of both charges, you are hereby convicted and sentenced to an aggregate term of 660 days’ imprisonment as part of a combination sentence. That period of 660 days equates to a sentence of about 22 months.
116 I direct that you have already served a period of pre-sentence detention of 480 days in respect of this sentence, not including today’s date. I further direct that the declaration and its details be entered in the records of this court.
117 Mr Rahimzadeh, that means that you have 180 days or approximately 6 months still to serve in custody. Leaving aside any intervention by the Immigration authorities, once that further period of 180 days is served, you will be automatically released from custody and then be subject to a community correction order, the details of which I will shortly explain.
118 The community correction order component of the combination sentence will be as follows.
119 The community correction order will be imposed with conviction and be for a period of two years. As well as the mandatory core conditions which are attached to every community correction order, it will have the following additional conditions for the duration of the order.
· You will be required to be under the supervision of a Community Corrections officer;
· You will have to undergo assessment, treatment and rehabilitation in relation to drug abuse or dependency, as directed;
· You will have to undergo assessment, treatment and rehabilitation in relation to mental health, as directed;
· You will have to participate in courses and/or programs that address factors relating to your offending behaviour as directed; and
· You will have to complete 200 hours of unpaid community work.
120 Given the Footscray address that Mr Rahimzadeh has indicated that he intends to reside at on his release from custody, the order will be supervised by the Sunshine Community Corrections Centre.
121 I propose to leave the Bench in a moment to allow my associate to provide the parties with a copy of the proposed community correction order for checking. Ms Carroll, could you also take the opportunity to ensure that your client fully understands the conditions of the order and the potential consequences for him if he were to breach it. Just let one of my staff know when you have done that and I will return to the Bench and ask you whether that has occurred and enquire whether your client understands and consents to being placed on such an order.
122 MS CARROLL: Yes, your Honour.
123 HIS HONOUR: Thank you. Mr Rahimzadeh can remain in the dock until I return shortly. Thank you.
(Short adjournment.)
124 HIS HONOUR: Counsel, does the proposed order give effect to my stated intentions?
125 COUNSEL: Yes, your Honour.
126 HIS HONOUR: Ms Carroll, are you satisfied that your client understands all of the conditions of the proposed order?
127 MS CARROLL: Yes I am, your Honour.
128 HIS HONOUR: Are you also satisfied that he understands what could occur to him in the event that he breached that order in any way, including by the commission of another offence during the period of the order?
129 MS CARROLL: Yes, your Honour.
130 HIS HONOUR: Does he consent to being placed on such an order and agree to be bound by all of its conditions?
131 MS CARROLL: He does.
132 HIS HONOUR: Very well. Mr Rahimzadeh, would you stand up please. Having had the conditions of the proposed community correction order explained to you, are you prepared to be placed on the proposed order and to be bound by all of its conditions?
133 OFFENDER: Yes.
134 HIS HONOUR: Let me just explain something to you, Mr Rahimzadeh. I am not suggesting that this will occur, but you need to understand it. If you were to breach this community correction order in any way, including by the commission of any other offence while on the order, you could be charged with and sentenced for the additional offence of contravening the community correction order, an offence which carries a maximum penalty of three months' imprisonment. You could also be sentenced afresh for the current offences of aggravated burglary and intentionally causing injury. In that event, you would stand a very real risk of being sent back to prison. Do you understand the potential consequences of any breach of this order?
135 OFFENDER: Yes, your Honour.
136 HIS HONOUR: Very well. Mr Rahimzadeh, I will now ask that you sign the order. You can attend the dock to assist him if he needs it, Ms Carroll.
137 MS CARROLL: Yes, your Honour.
(Order signed by the offender)
138 HIS HONOUR: Thank you. Is that your signature on the order, Mr Rahimzadeh?
139 OFFENDER: Yes.
140 HIS HONOUR: Given your consent, I formally sentence you in the manner I had earlier proposed. You may be seated now. Thank you.
Section 6 AAA indication
141 Pursuant to section 6AAA of the Sentencing Act 1991, this court states that had Mr Rahimzadeh pleaded not guilty to the offences for which he has been given a combination sentence today, and had he been convicted of those offences at a trial, he would have been sentenced to a total effective sentence of 4 years’ imprisonment with a non-parole period of 2 ½ years.
Forensic Sample Order
142 In all of the circumstances of this case, I am prepared to exercise my discretion in favour of granting the prosecution’s application for an order authorising the taking of a forensic sample from Mr Rahimzadeh pursuant to s.464ZF (2) of the Crimes Act 1958. I have made that decision having regard to the seriousness of the circumstances of the offending, the fact that the order was not opposed and the fact that the granting of the order is in the public interest.
143 Accordingly, I order that Mr Rahimzadeh undergo a forensic procedure for the taking of a scraping from the mouth and/or a blood sample in accordance with Subdivision 30A of Part 3 of the Act until a sufficient sample is obtained for placement on the database.
144 Mr Rahimzadeh, I am required to inform you that if at the time of request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and the police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that?
145 OFFENDER: Yes, your Honour.
Disposal Order
146 HIS HONOUR: I am also prepared to grant the prosecution’s application for a disposal order, in the terms sought, which I note was not opposed by the defence. Accordingly, pursuant to s. 78(1) of the Confiscation Act 1997, I order that the towbar used in this offending be forfeited to the State and then be tested and/or analysed before it is ultimately destroyed in accordance with the terms of the order I sign today.
Other Matters
147 Counsel, are there any matters that either of you wish to raise in respect of either the sentence or reasons for sentence at this stage?
148 MR BARRY: No, your Honour.
149 MS CARROLL: No, your Honour.
150 HIS HONOUR: Very well. I will now stand down until the plea hearing and Weston is ready to commence.
151 COUNSEL: If Your Honour pleases.
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