Director of Public Prosecutions v Saleh

[2016] VCC 117

Pages 1 - 8   IN THE COUNTY COURT OF VICTORIA

Revised (Not) Restricted Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00864

DIRECTOR OF PUBLIC PROSECUTIONS

v

MOHAMMED SALEH

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JUDGE:	HER HONOUR JUDGE CAMPTON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	18 February 2016
CASE MAY BE CITED AS:	DPP v Saleh
MEDIUM NEUTRAL CITATION:	[2016] VCC 117

REASONS FOR SENTENCE
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Subject: Intentionally cause serious injury
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: 4 years 9 months – 2 Years 3 Months cumulated on sentence currently being served – New non-parole period of 2 years and 5 Months fixed.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Basso
For the Offender	Mr L. Baker

HER HONOUR:

Charge

1Mohammed Saleh, on 19 August 2015, you were found guilty by a jury of one charge of intentionally causing serious injury to Lucas Watson.  The maximum penalty for this offence is 20 years' imprisonment.  Your co-offender, Sam Abdifar, was also found guilty by the jury of intentionally causing injury to Lucas Watson and on 10 November 2015 he was sentenced by the trial judge to five years' imprisonment.  Her Honour directed that two years and six months of this sentence be served cumulatively on a sentence he was already serving.  She set a single non-parole period of three years.

2Due to the events which took place during your sentence hearing on 23 April 2015, Her Honour excused herself from the further hearing of your plea.  However, in sentencing your co-accused, Her Honour made a number of findings of fact which are not disputed by you, nor is her summary of the circumstances surrounding the offending.  In addition your counsel accepted that Her Honour's characterisation of the offending was appropriate.

Background to Offence

3The background of this matter is that on 5 November 2012, you and your co-offender were serving a prison sentence at the Scarborough North Unit of Port Phillip Prison, as was your victim Lucas Watson.  On that morning when Lucas Watson left his cell in order to obtain medication for a longstanding back pain, you and your co-offender took advantage of his absence to hide yourself in his cell behind the shower curtain.

4When Lucas Watson returned to his cell, you and your co-accused emerged from the shower and attacked him.  Your co-accused was armed with a large rock and he repeatedly struck Lucas Watson to the head, trunk and legs.  You were armed with a metal shiv with which you repeatedly stabbed Lucas Watson, in particular to the torso and legs.  The attack caused him to fall down and you continued to strike him, your co-accused with the rock and you with the shiv.

5When you or your co-accused turned on the light in the cell, Mr Watson recognised you both.  You and your co-offender then washed the rock and metal shiv in the sink and changed clothing.  You left the shiv in the sink and the rock under Mr Watson's bed and left the cell.  At some stage after the assault, you were chased by Mr Watson who had blood running down his face from the wounds on his head and while you were being pursued by him, you put your hands up in a gesture of innocence as though you had no idea why he would be chasing you.

6There was a lockdown at the unit and your co-offender was found in cell 446 which is just two cells down from Mr Watson's cell.  On searching the cell, investigating officers found two damp white towels, a pair of ASIC runners which were wet, a pair of green prison tracksuit pants, a damp green prison windcheater and a pair of wet black underpants.

7DNA testing connected you and Mr Watson to the tracksuit and windcheater.  DNA found on your singlet provided extremely strong support for the proposition that you and Mr Watson were each contributors to that profile. 

8Mr Watson was taken to the Alfred Hospital where he was treated in the Emergency and Trauma Centre.  His injuries included abrasions to the head and face, a nasal bone fracture, multiple abrasions to the body and puncture wounds on the posterior body.  He was in hospital overnight and then discharged to St Johns Ward at Port Phillip Prison where he remained under observation for some seven to eight days.

Personal Background

9At the time he prepared his victim impact statement, Lucas Watson was still in custody.  In his statement he described being wary as he feared payback for his complaint to the police and this caused him to often stay in his cell and he required ongoing regular contact with a counsellor.  He stated that his injuries reminded him every day of the incident and that he tended to avoid large crowds in prison for fear of attack.

10Your background circumstances were outlined to the court by your counsel and further details were contained in reports from Dr Adam Deacon dated 20 August 2012 and Gina Cidoni dated 20 October 2015.  You were born in Basra in Iraq on 25 September 1988 so you are 27 years old.  You were raised in Najaf which is the spiritual home of the Iraq Shia minority.  You have three siblings and your family migrated to Australia in September 2000 when you were about 12 years old.

11The history you have provided of your life prior to your family's migration to Australia can only be described as horrific.  Your father, who was a general in the Iraq Army was imprisoned for a period and tortured due to his refusal to attack Shia villages.  You were subjected to physical abuse by teachers when they learnt that your father was in prison, including beating with a metal stick and having your fingernails removed with pliers.

12You witnessed your mother being severely burnt when a petrol heater was poured onto her and ignited.  You were imprisoned for six months and tortured in Abu Ghraib Prison when you tried to protect a doctor who had offered to assist your mother.  During your time in prison, you were forced to witness prisoners being tortured and murdered.

13After your time in prison, you became a member of Saddam's youth.  You were indoctrinated into the regime through fear.  On this history it is hardly surprising that your family sought to flee Iraq.  Your father left first while you and the rest of the family spent time in Jordan and Syria.  During the time in Syria, your family lived in a basement and sustained themselves by recycling and you sometimes went without food for days.

14After you arrived in Melbourne, the family rented a house in Fawkner.  You did not speak any English on arrival and struggled at school.  You were racially vilified by other students including being called, "Saddam Hussein".  Your educational difficulties were probably compounded by your relatively low IQ and you left school after Year 10.

15After leaving school, you primarily cared for your father who has been a psychiatric invalid since leaving Iraq.  Unfortunately for you, you got involved with a group of peers who were engaged in violence and crime.  You have two prior convictions.  Your first conviction was in May 2009 for intentionally causing injury for which you received a two months' intensive corrections order.  Then on 2 April 2012, you were convicted in the Supreme Court at Melbourne for the crime of manslaughter for which you were sentenced by Mr Justice Almond to eight years and six months with a non-parole period of six years.

16The latter offence occurred on 27 May 2010 after an altercation between two groups of young men and involved you striking the deceased with your Holden Commodore vehicle.  You made a failed attempt at suicide after this offence, jumping from a roof in front of a moving car. 

Reports

17In the conclusion to his report of 20 August 2012, Dr Deacon diagnosed you as having a history and presentation consistent with post traumatic stress disorder and major depressive disorder.  In the final paragraph of his reported he described you as being “a starkly psychiatrically impaired young man, although your difficulties were not immediately apparent on superficial observation”.  In his opinion, you would undoubtedly continue to experience considerable difficulty whilst in the custodial setting.

Sentencing Submissions

18In her report, Gina Cidoni said that you were “still plagued by flashbacks and memories of your time in Iraq with graphic distressing images pervading your mind”. She also reported that you were very distressed by your experience as a young boy in Australia.  She administered a number of tests and concluded that intellectual testing was indicative of borderline capacity with a full scale IQ of 71, placing you in the third percentile where 97 per cent of your age related peers would perform better.

19She concluded that you presented as an extremely disturbed young man suffering from the psychological effects of an extremely traumatic past.  You met all the diagnostic criteria for post traumatic stress disorder and depression and anxiety.  In Ms Cidoni's opinion, your present circumstances under lockdown over the past three and half years compounded your illness and precluded you from essential treatment.  Ideally, in view of your presentation, you should be in a psychiatric treatment facility and a further decompression of your mental health was expected under current conditions.

20In his submissions with respect to an appropriate sentence, your counsel conceded that your offending is serious, that your conduct must be denounced and that you must be justly punished and that the offending was part of a joint criminal enterprise with your co-accused with each of you being equally responsible for inflicting injuries.

Sentencing Remarks

21While it was accepted by your counsel that there should be appropriate parity with the sentence imposed on your co-offender, however it was submitted that your sentence should be slightly less.  The mitigating matters relied on by your counsel included your traumatic past, your psychiatric condition, the post traumatic stress disorder and major depressive order and your borderline intellectual functioning.

22In this respect, your counsel relied on the opinion of both Dr Deacon and Ms Cidoni regarding the extra hardship you faced in prison due to your psychiatric conditions and in addition on Ms Cidoni's opinion that the lockdown over the past three and a half years had compounded your illness.

23In sentencing you, I take all these matters into account.  I accept that your post traumatic stress disorder and major depressive disorder will make it likely that your sentence will weigh more heavily on your than it would a person in normal health.  I also accept that your mental health is likely to deteriorate.   I accept that the recent unfortunate lockdown regime in prison has contributed to these issues and I have accordingly appropriately moderated general and specific deterrence.

24I have also taken into account that there has been some delay in this matter which is not attributable to you.  Although the offending occurred on 5 November 2012, Lucas Watson delayed making a statement to the police because of fear of retribution so this means you were not charged until January 2014.

25I have concluded that you are not without prospects of rehabilitation.  This is because, despite your traumatic background, you do not have an extensive criminal history.  Although your psychiatric condition and mental functioning may work against your chances of rehabilitation, appropriate treatment and assistance may improve your prospects.  You are still a young man and as such you still have prospects.

26In this respect, I note that there are some positive things in Dr Deacon's report including that you identify yourself as a family orientated man who loves children.  You have cared for your father who is psychiatrically ill.  You have some self awareness in that you recognise that when you get angry, you have to try to calm down at those times.  You do not take drugs and you do not drink alcohol.  You achieved high scores in the maths and science tests when you applied for the Army.

27However, I am sure you are well aware that this offence is a fairly serious example of intentionally causing serious injury.  It was carefully planned.  There were two armed men taking part in a cowardly surprise attack against a single unarmed victim.  In her sentencing remarks, Her Honour who sentenced your co-offender said:

"A person who is held in custody is already in a vulnerable condition by having his liberty curtailed.  It is fundamental that prisoners must be safeguarded from the brutality of other prisoners, otherwise the good order and management of our correctional facilities is in jeopardy.  It is totally unacceptable that a prisoner should have to live each day fearing for his safety because of these types of attacks."

28I concur and agree with these sentencing remarks.  Balancing the relative sentencing considerations, I am going to take the following action.  Would you please stand up.

Sentence

29On the charge of intentionally causing serious injury, you are sentenced to a term of imprisonment of four years and nine months.  I cumulate two years and three months of this sentence on the sentence that you are currently undergoing.

30In accordance with s.14 of the Sentencing Act, I am required to fix a new non-parole period in respect of all the sentences you have to serve.  The new non-parole period is two years and five months.  This means, if my calculations are right, that your release date is 18 July 2018.

31The reason that you have received not as large sentence as your co-offender is largely because of the fact that he had a history of violence offences going back I think into the late 1990s.  I might be wrong about that but he did have an extensive history.  So in effect your sentence is not as extensive mainly for that reason.  Is there anything arising from that.

32MR BAKER:  Nothing, Your Honour, no.  May my client resume his seat?

33HER HONOUR:  Yes.

34MR BAKER:  There was just one matter, ma'am, and that was that - and it's not terribly important, it's just a matter of detail - it was only Mr Abdifar who was located in cell 446.  My client was found in the downstairs common area and issued into cell 400.

35HER HONOUR:  All right.  It was not terribly clear from Her Honour's sentence but that explains why your client was chased by the ‑ ‑ ‑

36MR BAKER:  Yes, downstairs and ‑ ‑ ‑

37HER HONOUR:  All right, I accept that that - that doesn't make ‑ ‑ ‑

38MR BAKER:  It doesn't change anything, no, not at all.

39HER HONOUR:  It doesn't change anything but thank you for correcting that.  I remember when I prepared the sentence that it wasn't terribly clear, the way it was expressed as to how that all fitted in.

40MR BAKER:  No, Mr Abdifar was held with other prisoners there but not my client.

41HER HONOUR:  All right. Thank you for bringing that to my attention. 

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