Director of Public Prosecutions v Sakeerah (a pseudonym)
[2018] VCC 1540
•11 September 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| AARON SAKEERAH (A Pseudonym) |
---
| JUDGE: | HER HONOUR JUDGE WILMOTH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 September 2018 |
| DATE OF SENTENCE: | 11 September 2018 |
| CASE MAY BE CITED AS: | DPP v Sakeerah (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 1540 |
REASONS FOR SENTENCE
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PSEUDONYMS HAVE BEEN USED TO PROTECT THE IDENTITY OF THE VICTIM AND FAMILY
---Subject: criminal law - sentence
Catchwords: Pleaded guilty to one charge of intentionally causing injury –family violence - in 2012 diagnosed with schizophrenia – stopped taking anti-psychotic medication – prior assault on wife – this stabbing assault of wife in presence of children occurred during psychotic episode – early plea – remorseful – mental illness stabilised whilst in custody – insight
Cases Cited: Pasinis v R [2014] VSCA 97 at [53], Verdins v R [2007] VSCA 102, DPP v Williams [2019] VSCA 171, DPP v Hartley [2017] VCC 690, DPP v Kitchen [2016]VCC 1045
Sentence: 12 months imprisonment with CCO of 5 years---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr C. McConaghy | OPP |
| For the Accused | Ms J. Poole | VLA |
HER HONOUR:
1Aaron Sakeerah[1], you have pleaded guilty to one charge of intentionally causing injury, which occurred on 14 November 2017. The victim of this crime was your wife, Anna Lottie[2]. You stabbed her in the chest with a kitchen knife, causing a penetrating wound which required suturing. There was concern about an internal blood clot which was causing pain and Ms Lottie was to be assessed again at a later date.
[1] A Pseudonym
[2] A Pseudonym
2At the time, you were living with your wife and three daughters, then aged 13, ten and two. You were married in 2003. You were born in Lebanon and came to Australia as a student in 2001. After the birth of your eldest daughter in 2004, you and your wife separated for some time but then reconciled and this pattern continued over the years.
3In 2012 you were diagnosed with schizophrenia after several years of experiencing a decline in your mental health. That began when, following a workplace injury in 2008, you commenced abusing prescribed medication for pain. Soon after your diagnosis you visited Lebanon where a doctor told you that you do not suffer from a mental illness and so you stopped taking the
anti-psychotic medication which had been prescribed.4When this offending occurred, you had not had any contact with mental health services since you stopped the medication. During a period of separation in 2012, Ms Lottie obtained an intervention order against you after you assaulted her. However, around this time your second daughter was diagnosed with developmental problems and you and Ms Lottie decided to resume living together for the benefit of the child.
5In 2015 your third daughter was born and you and Ms Lottie separated again soon afterwards. Then in 2017, she and the children were the target of threats from one of your brothers so they returned to live with you. Soon afterwards you began to pray more than usual and talked about Judgment Day and the devil.
6On 13 November you prayed loudly in the house for most of the night causing Ms Lottie to be woken at one stage. The next day you exhibited strange behaviour throughout the morning, speaking of signs of evil. Ms Lottie took the children to her mother's house for a few hours. They returned home in the afternoon and you continued to behave strangely, talking about a prophecy.
7In the early evening Ms Lottie asked you to tone down the religious talk and you told her, "You are the antichrist and I am the messiah". You produced a kitchen knife and as Ms Lottie backed away from you, you continued to tell her she was the devil, swinging the knife at her face. You then stabbed her once in the chest. She knelt down, pressing her hand onto the wound, and you began kissing her face and neck, looking upwards and saying, "Look what you made me do".
8You walked out of the house and your eldest daughter bravely took action by locking the door after you and calling emergency services. In the street you removed all your clothing and waved your arms about chanting. Several neighbours called 000 and one neighbour confronted you and forced you to the ground. Police arrived and arrested you and at the police station you were assessed as unfit to be interviewed. You were then charged and remanded into custody where you have remained.
9Ms Lottie was taken to the Royal Melbourne Hospital by ambulance and a penetrating injury with a moderate left haemothorax and a tiny right haemothorax were diagnosed. The wound was sutured and she remained in hospital for three days. In her victim impact statement, Ms Lottie explained that her oesophagus was ruptured by the knife but that it healed without the need for surgery.
10Although it was objectively an extremely dangerous and concerning attack, the enduring legacy for Ms Lottie is not the physical injury but the emotional effect according to her victim impact statement. She stated that, "I lost my best friend, my husband. A feeling of sorrow, hurt and anger overwhelms me".
11Sadly, she confessed to a feeling of self-blame stating, "I repeatedly keep asking myself why? Why wasn't he on treatment? Why is this happening to us? How did I not see the signs?". Fortunately, she seems to be a very resilient person and she states she has forgiven you, which she sees as the best way for her to recover.
12I turn now to consider the gravity of the offending. Intentionally causing injury is a serious offence and this instance of it is at the higher end of the range of seriousness. Committing violence upon a partner is, sadly, a prevalent crime which deserves the stern denunciation of the court to reinforce the message that such violence is not to be tolerated and is to be punished severely. The community expects no less, and the legislature has provided for a maximum penalty of ten years' imprisonment.
13In addition, it is the second time you have harmed Ms Lottie. In June 2013 you were charged with assaulting her and you received an eight month Community Correction Order. In 2007 you had received a 12 month Community Correction Order for charges of reckless conduct endangering serious injury, making a threat to kill and unlawful assault in relation to a different matter involving a housemate of your brother. You completed both those orders successfully.
14Those matters not only add to the seriousness of this offence but are relevant to your prospects for rehabilitation because they demonstrate a predisposition towards violence. Having already been punished for violence towards your wife in the past, you were on notice as to how serious a matter such violence is and to take steps to avoid it happening again. It is an aggravating factor to be taken into account in determining gravity.
15A further aggravating factor is the fact that the violence occurred in the presence of the three children, and one of the children had to take action to prevent you committing any further violence. The fact that this is an instance of family violence could be said to be an aggravating factor in itself in terms of gravity.
16In recent years, this has been the subject of comment in the higher courts, requiring greater emphasis by sentencing courts. It was said in Pasinis v R[3] that the criminal law now gives greater recognition to the devastating effects of family violence and that this makes both specific and general deterrence very important factors in sentencing those who assault their partners.
[3] Pasinis v R [2014] VSCA 97 at [53]
17Ms Poole who appeared on your behalf sought to cast your behaviour in a different light because of the acute episode which you were experiencing at the time and submitted that it should be sharply distinguished from usual examples of family violence. Because of your psychosis, she submitted, you were unable to understand the wrongfulness of your actions.
18You had not planned the offence, the knife happened to be in the room where the argument ended. However, you took hold of the knife from where it had been kept and you used it to hurt your wife, although clearly in the context of paranoid delusions about her and about yourself. Nonetheless, your offending on this occasion, and indeed in the past, must be assessed in the context of schizophrenia from which you suffer.
19In March 2018 you were assessed by Dr Pandurangi, a consultant psychiatrist, and he diagnosed paranoid schizophrenia for which you are currently medicated with Olanzapine, an antipsychotic drug, and Mirtazapine, an antidepressant.
20In summary, Dr Pandurangi reviewed the statements of Ms Lottie and your eldest daughter and concluded that there is ample evidence to suggest that you were suffering from acute symptoms of your mental illness at the time of the offending. He stated that in his opinion the offending was entirely linked to your underlying psychosis, which would have affected your ability to think clearly and to judge the wrongfulness of your actions. You have stated that you cannot remember the offence at all.
21Dr Pandurangi noted that you continue to experience psychotic symptoms in prison, albeit at a lower intensity than previously, despite being compliant with medication and reportedly not using any illicit drugs in prison. This observation is important because it may go some way to explain your mental state at the time of the offending. That is, that you had ceased taking prescribed methadone about three days before the offending and you were noncompliant with antipsychotic medication. Therefore, it can be inferred that your state of acute psychosis was not affected in any way, or possibly only minimally, by the presence of any other drugs such as methadone. That in turn allows for the conclusion that the Verdins[4] principles apply to reduce your moral culpability.
[4] Verdins v R [2007] VSCA 102
22Mr McConaghy, for the prosecution, submitted that you knew you suffered from schizophrenia and that you needed antipsychotic medication and you were voluntarily not taking it. In response, Ms Poole pointed out that you had relied on the different diagnosis of the doctor you saw in Lebanon.
23However, during the five years since then, you have been convicted of the earlier offences against your wife and despite a Community Correction Order with a condition for medical attention, it appears you had done nothing about it. The result is that your moral culpability is reduced considerably but your own criminal responsibility remains a sentencing factor.
24As to your other personal circumstances, you finished secondary school in Lebanon and on arrival in Australia, you enrolled at TAFE and completed an IT qualification. You then worked as a welder at a car factory for several years but had to stop work owing to a knee injury and joint pain which appears to be a longstanding medical condition. You were then on WorkCover for two years and since then, on a disability pension.
25As I said earlier, in about 2008 you were prescribed opiate pain medication for your knee injury and became addicted. You abused this medication and obtained it through “doctor shopping”. By 2010 you were feeling depressed and sought treatment from your general practitioner for the symptoms, and two years later in 2012, you were diagnosed with schizophrenia and prescribed medication.
26Then, because of the diagnosis in Lebanon a short time later, for the next five years until the current offending, you had had no further medical health treatment, leaving open the risk that you might offend again which of course did occur.
27You have pleaded guilty at the earliest opportunity at the fourth committal mention in May this year. You are entitled to a discount on your sentence for having avoided a trial, which is important because that would have required your wife and daughter as well as other witnesses to come to court and give evidence. By your plea, you have spared them that and the case has been finished reasonably quickly.
28It is clear that you are remorseful and regret what you did, although I note that you cannot remember what actually occurred. Your plea of guilty also endorses your expression of regret and that is an important aspect of your chances for rehabilitation. Hopefully, your motive to stop yourself from behaving in this way again will be stronger and more effective than it was in the past. The indications for that are positive in that you hope to be able to see your children at some time in the future, while understanding that that cannot happen yet.
29Once again, there remains a risk of reoffending but it is perhaps reduced by the fact that you have been in custody for ten months and your mental illness has stabilised with appropriate medication and the development of some insight, according to Dr Pandurangi. He considers that the risks can be mitigated by assertive mental health follow-up, ensuring compliance with treatment and engagement in vocational activities.
30He thinks you would benefit from psychological interventions to assist you in coping with stressors and depressive symptoms and if all this were attended to, your prospects for rehabilitation would be reasonable. You have strong support from your family, comprising your siblings, apart from your brother, Mahmud[5], and on release you will be able to live with your brother, Abdul[6].
[5] A Pseudonym
[6] A Pseudonym
31The circumstances of this case present me with the difficult task in determining an appropriate sentence. I have been referred to three cases which are said to provide guidance.
32The first is DPP v Williams[7]. In that case, the offender suffered from paranoid schizophrenia and was noncompliant with medication. He was in the midst of a relapse of his illness when, driven by persecutory delusions, he pursued his brother-in-law across town and stabbed him outside a police station and in the presence of a police officer. In addition, he was a user of the drug ice at the time. On appeal, he was placed on a five year Community Correction Order which replaced a prison sentence of three years and three months with a
non-parole period of two years.[7] DPP v Williams [2018] VSCA 171
33The second case to which I was referred was DPP v Hartley[8], a decision of a judge of this court. The offender who stabbed her husband could offer no explanation for the offence, which was entirely out of character. As in this case, the victim was forgiving. The offender's mood disorder was in remission by the time of the plea hearing. She was remorseful and her prospects for rehabilitation were said to be excellent. The sentencing judge concluded that her moral culpability was reduced and the principles in the decision of Verdins applied and she was placed on a two year Community Correction Order.
[8] DPP v Hartley [2017] VCC 690
34Finally, in DPP v Kitchen[9], a husband tried to kill his wife by smothering her and was placed on a Community Correction Order by the sentencing judge, having taken into account his mental illness of severe depression and the resultant reduction in his moral culpability by reason of the principles in Verdins.
[9] DPP v Kitchen [2016] VCC 1045
35There are considerable similarities between these cases and this case but your previous convictions, including the previous assault on your wife, could arguably place it in a somewhat different category. In Williams, the offender had spent 15 months in custody and a five year Community Correction Order was imposed. The violent attack on the victim there was of a terrifying type and had none of the spontaneity as in this case. On the other hand, the victim was not an intimate partner and there were no children present.
36However, taking all the relevant circumstances into account, I have concluded that a Community Correction Order is appropriate in combination with a prison sentence of one year, of which you have already served ten months by way of pre-sentence detention. You have been assessed as suitable, subject to being able to provide the court and corrections with the residential address of your brother with whom you will be living, as well as a mobile phone number for contacting you.
37You are sentenced to 12 months' imprisonment with a Community Correction Order, the details of which are as follows:
38It will begin on the day you are released from prison and will last for five years. You will be under supervision and you must take part in programs as directed by your case manager. These will include assessment and any necessary treatment for drug abuse, assessment and referral for mental health, and the continuing monitoring of your mental health and programs to reduce offending. This will include the Men's Behaviour Change Program.
39There will also be a condition prohibiting you from contacting
Ms Lottie in accordance with the intervention order which I understand is currently in place, but I do not have the details of that and I will confer in a moment with counsel about that.40The prosecution seeks orders for disposal of items and for a sample of saliva to be obtained and I think they are unopposed. Is that right, Ms Poole?
MS POOLE:Yes, Your Honour.
HER HONOUR: Thank you. I'll explain what that means, Mr Sakeerah. The sample of saliva can be obtained by the police and they have the power to use reasonable force to obtain that sample but I trust that won't be necessary.
If you had pleaded not guilty, I would have sentenced you to 30 months' imprisonment with a non-parole period of 20 months.
I declare that pre-sentence detention is 301 days, which is to be reckoned as already served.
The intervention order was mentioned during the plea hearing I think, but I didn't take note of the details.
MR McCONAGHY: Yes, the information was provided by the informant. Unfortunately, the informant is not with us today, Your Honour.
HER HONOUR: That's all right.
MR McCONAGHY: My recollection is that it is a final order that would cease on 31 December 2060. That's all the information that I can provide you with.
HER HONOUR: All right, I see. Do you have any information about it, Ms Poole?
MS POOLE:I'll just check whether I have that.
HER HONOUR: Presumably it applies to protect Ms Lottie as the aggrieved family member, is that right?
MR McCONAGHY: Yes.
MS POOLE:Yes. And I believe the children are also on that order as well. I don’t have it.
HER HONOUR: No, all right. What I propose to do is include in the Community Correction Order an exclusion clause which will read, "You must not enter or attend Ms Lottie's home or work address for a period of five years". I think in combination with the intervention order that'll be sufficient. It just reinforces the importance of it.
Do you understand that, Mr Sakeerah? All right. This can be given to him now to sign. Do you want to go with it to the dock, Ms Poole?
MS POOLE:Yes, Your Honour.
HER HONOUR: Is there anything I've omitted or neglected, Mr McConaghy?
MR McCONAGHY: No, Your Honour.
HER HONOUR: All right then. Ms Poole?
MS POOLE:No, Your Honour.
HER HONOUR: Thank you very much for your assistance.
MS POOLE:Thank you.
MR McCONAGHY: Thank you, Your Honour.
HER HONOUR: Officers, thank you, you may take Mr Sakeerah now.
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