Director of Public Prosecutions v Sayour
[2017] VCC 656
•24 May 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
CR-16-01781
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MUSTAFA SAYOUR |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 May 2017 | |
DATE OF SENTENCE: | 24 May 2017 | |
CASE MAY BE CITED AS: | DPP v Sayour | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 656 | |
REASONS FOR SENTENCE
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Subject:Criminal law – sentencing – aggravated burglary – intentionally cause injury – jail term to be followed by a Community Correction Order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B Nibbs | John Cain, Solicitor for the Director of Public Prosecutions |
| For the Accused | Ms N Karapanagiotidis | Leanne Warren & Associates |
HER HONOUR:
1
Mustafa Sayour, you have pleaded guilty to one charge of aggravated burglary, in that you entered as a trespasser a building situated at
22 McIvor Street, Dallas, Victoria on 1 June 2016, with the intent to commit an assault to a person and at the time of entering you knew that a person was present and that without lawful excuse you intentionally caused injury to that person, Malek Sayour, who is your younger brother.
2 The crimes of aggravated burglary and causing injury intentionally are serious and that is reflected in the maximum penalty that Parliament prescribes. That is 25 years’ imprisonment for aggravated burglary and ten years’ imprisonment for causing injury intentionally.
3 I will now sentence you on the basis of the summary of prosecution opening. It was read at the plea hearing. You were aged 32 at the time the offending occurred and you are now aged 33.
4
The circumstances of the offending were that, at 6.15 am on Wednesday
1 June 2016, you travelled to your younger brother’s residential address in Dallas. You forcibly entered that address and entered his bedroom where you proceeded to attack him with a metal pole and a large kitchen knife. Malek Sayour suffered defensive wounds when he put his left arm up to protect his head. You attacked him by hitting his left arm and head approximately seven times with the metal pole and knife.
5 He did not immediately identify the male who attacked him because that person was wearing black balaclava, a dark grey hooded jacket and pants and was slightly taller him with a large solid build. However he heard you speaking and was able to identify you as being his brother. There was another person present at the house, Mohammed Merhi, who heard noises like somebody being hit and heard your brother Malek screaming, “Please, Mustafa, stop” and, “Mohammed, help me.” Eventually your brother was able to disarm you and take the knife off you. He pushed you to the ground and was able to run out of the house and escape. He was able to obtain assistance from an employee at a nearby supermarket who then notified police.
6 Malek was taken to the Northern Hospital at Epping and it was noted that he suffered these injuries:
(a) fractured left nasal bone;
(b) fracture to the left forearm; and
(c) lacerations to the left eyebrow and top right side of his head.
7 Combined, those are an injury as defined in the Crimes Act. Those facts constitutes the matters relied upon by the Crown in respect to the two charges on the indictment.
8 Mr Sayour, your actions on that occasion have had a lasting effect upon your younger brother Malek. I have had regard to the admissible parts of his victim impact statement declared on 17 September 2016. I accept that he has been very traumatised as a result of what happened. He has been left with some scarring on his face which are a constant reminder of the assault. He has difficulty sleeping, nightmares and often ruminates about what occurred. He finds it is difficult now to leave the house and he is always hypervigilant whenever he is in public and fears being assaulted again. He states he is in constant physical and emotional pain.
9 Mr Sayour, this confrontational aggravated burglary and the resulting injury is a bad example of this sort of offending and you will be punished accordingly. You entered your brother's home in the early hours; you somehow equipped yourself with a metal rod and the knife; you were disguised; and you attacked your brother without there being any apparent motive for your offending.
10 In sentencing you, there is a need for the court to emphasise both general and specific deterrence.
11
You have admitted your prior criminal history and there are three appearances spanning the period from 18 September 2009 to
18 May 2015. Of relevance, you were dealt with on two occasions for crimes of violence; one at Wangaratta Magistrates’ Court on 9 July 2012. You were dealt with for a recklessly cause injury charge, for which you were placed on a 12 month community correction order.
12 On 18 May 2015 at Broadmeadows Magistrates' Court you were dealt with in respect to an unlawful assault, another charge for which you were placed on an adjourned undertaking for 12 months without conviction. On both occasions it was requested that you undertake some treatment. On the first occasion you were asked to attend mental health treatment and assessment and an anger management program. On the second occasion, you were required to undergo further treatment with a psychologist.
13 The context of that offending, firstly in Wangaratta, you were purchasing a car and you perceived that the seller was being racist towards your wife. You threw a wheelie bin at that person. In respect to the Broadmeadows matter, you attended upon a medical clinic. Because your usual doctor was on leave you were seen by an alternative doctor who refused to prescribe you the pain relief medications that you needed. On refusal, you damaged the wall of the practice and you also spat at the doctor.
14
Those priors are of some relevance to me today because they reflect crimes of violence against the person.
I accept the submission made on your behalf that they are not of the same seriousness as the sort of offending for which you have been dealt with today. Nonetheless it does reflect poorly upon you, that behaviour, and does emphasise the need for there to be further attempts at directing you to managing your anger appropriately and also dealing with your underlying psychological problems.
15 Ms Karapanagiotidis on your behalf acknowledged the seriousness of your offending and confirmed in sentencing, the court must place weight on deterrence and must impose just punishment.
16 The focus of her submission was having regard to the time that you have already spent in custody on remand and having regard to your post offense conduct, that the court ought be satisfied that you have had an opportunity to reflect on your criminal behaviour and that you do show strong prospects of rehabilitation. She did not resile from the fact that this was serious offending but submitted that there was a reduced level of moral culpability because the incident occurred in the context of you suffering from the symptoms psychosis that were drug-induced.
17 To understand that submission, it is necessary to refer to some background history and personal circumstances. You were born in Tripoli, Lebanon and you are one of four children. Your parents have remained in Lebanon. You have some relatives living here in Australia. As a 21 year old, you came to Australia in 2005. Previously you had completed Year 12 and performed well at school. You were in the middle year of your second year of university studies in industrial engineering when you migrated.
18 Your maternal grandparents, three uncles and an older brother had earlier migrated to Australia and you migrated for better opportunities.
19
Once you came here you obtained employment with two steel galvanising companies and you were able to work. Unfortunately you developed severe pain related to bilateral plantar fasciitis as a consequence of your work.. You have received WorkCover payments since January 2012. Your condition has caused you to suffer from chronic pain and inhibits your gait. You have not responded well to conservative management, in the past you have also had cortisone injections, which have not alleviated your pain. Because of your problems coping with the severe pain, you developed a secondary depressive disorder and that is marked by low mood, lethargy, insomnia, social withdrawal, anxiety, concentration and memory problems with some suicidal ideation. You have been under the care of a general practitioner,
Dr Diamantaras, a psychologist, Mr Tsironis and a psychiatrist, Dr Ibrahim. It is not anticipated that your chronic intractable bilateral foot pain will resolve and it is believed your condition is long term and chronic.
20 You began using methamphetamines as a consequence of it being suggested to you by a friend that that drug would alleviate your pain. It is reported that you found that it did temporarily combat your foot pain, so much so that you commenced using methamphetamine daily, initially a quarter to a half gram per day. You soon became dependent and experienced withdrawals and cravings. You were aware that you had developed an addiction and you told your wife about that and your general practitioner and psychiatrist approximately one month prior to your arrest.
21 I have regard to a report from Dr Adam Deacon, a consultant psychiatrist, that was filed on your behalf on the plea hearing. You reported to him that you weaned your use over five days and then abstained for three weeks before your arrest but you were struggling to maintain abstinence. You became paranoid within two months of using methamphetamine and you had many intrusive thoughts. You also experienced some auditory hallucinations and you were feeling anxious and scared.
22 Dr Deacon reports you maintain some insight into methamphetamine impacting upon you negatively but you struggled. In that context I do not accept that your moral culpability ought be reduced. It was obvious that you were experiencing problems that you linked to the drug ice, and you were aware of its effects prior to this offending. Whilst your evolving psychotic symptoms did impact adversely upon you and contributed to the offending and explains the offending, it in no way does it reduces your moral culpability.
23 I have, however, taken into account in a general sense the difficulties that you were experiencing managing your chronic pain and therefore your vulnerability and suggestibility to using the drug ice, which goes to a long way to explain this otherwise inexplicable offending.
24 You were arrested by police on the day following the incident on 2 June 2016. During the record of interview that was conducted you made denials.
25 Thereafter you were remanded in custody and you have been continuously held since that date. Your time spent in custody has been very beneficial. Your psychiatric condition has improved and is now settled and all the symptoms characteristic of methamphetamine induced psychosis have now resolved. You did experience difficulties at first when you received into the prison and there were attempts at suicide and you were placed on suicide watch on one occasion in late June 2016. Whilst in prison you have had some pain relief medication but the situation is that you can have only limited access to pain relief. It is a far more restrictive regime than what you would otherwise be available to if you were being treated by your general practitioner. You have been seen occasionally by a psychiatric nurse in custody and you are on prescribed medication.
26 I accept that since you have been in prison, you have made the most of your opportunities. I have sighted the certificate confirming that you have done a six week program called “Change on the Inside” and you also completed two programs run by ReGen which involved a 12 hour substance misuse program, such that you have been directed to being provided with an understanding of the negative aspects of drugs on your physical, emotional and mental health and its long term effects and you now have harm minimisation strategies to be able to use in the future to avoid future use.
27 Your say that you are committed to maintaining abstinence when you return to the community. You acknowledge that in order to achieve that you are prepared to undergo long term rehabilitation.
28 You are currently drug-free and I have had regard to the report from Richard Charles, manager of the Uniting Care ReGen program which confirms that you are not an identified drug user within the prison system.
29 You have been very fortunate in that you have your ongoing support from your wife, Rawaa and her family. I have had regard to the contents of the letter that was written on behalf of her parents that sets out the background and your difficulties which I accept. In the letter they state that you have shown remorse in respect to the offending and you acknowledge the effect it has had on your brother. You feel ashamed and sorry for what you have done and you have expressed to them the need to continue treatment upon your eventual release.
30 Fortunately, they have agreed to allow you to come to live at their home with their daughter, Rawaa and they are prepared to offer all practical support that they are able to, to assist you.
31 Your wife has continued to maintain her relationship with you, visiting you several times per week whilst you have been in gaol. She too suffers physical injuries and has chronic pain for which she is currently under a pain management program at Broadmeadows Health. She suffers from profound severe depression and since you have been in goal, her condition has deteriorated.
32 You have been married for a period of about seven years and there are no children.
33 I accept the submissions made by Ms Karapanagiotidis in respect to mitigating factors with the exception of the submissions made in respect to moral culpability.
34 Overall I have had regard to the guideline judgment of Boulton v R and the availability of a Community Correction Order in circumstances such as this, wherein the past you would have been the subject of a term of imprisonment. Now the courts do have this option which enables you to be punished but also be supported in terms of your rehabilitation when you are ultimately returned to the community.
35 A Community Correction Order is accepted as being punitive. It can achieve deterrence and it has been stated may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment and those observations apply in this case.[1]
[1]Boulton v The Queen [2014] VSCA 342.
36 I have had regard to your early plea of guilty. It is of utilitarian benefit and is indicative of some remorse. You have spared your brother, importantly, the trauma of having to give evidence on your trial. I accept you have facilitated justice and your sentence will be discounted accordingly. I have had regard to your prior criminal history. I have also had regard to your previous history of medical issues and the difficulties that you have suffered and the difficulties you have experienced whilst in custody. I have accepted the context of the offending in a general sense and I accept that currently, you present as a person who has excellent prospects of rehabilitation provided that you adhere to your expressed intention to remain abstinent in the future from illicit drug use and maintain total abstinence. You have expressed a willingness to engage in rehabilitation and that has been evidenced by the efforts, the very real efforts that you have made in custody.
37
Ultimately I am satisfied that a combination of a term of imprisonment of
12 months combined with a three year Community Correction Order can provide for condoned punishment, provide appropriate condemnation of your behaviour and also provide for your supported release into the community.
38 Mr Nibbs the prosecutor, confirmed the offending was serious and there was a need to emphasise just punishment and general and specific deterrence. On behalf of the prosecution, he agreed the disposition that was sought by defence was one that was open to the court and would provide for your supported release into the community.
39 In respect to the two charges, Charge 1, aggravated burglary, and Charge 2, causing injury intentionally, you will be convicted and sentenced to 12 months’ imprisonment to be followed by a community correction order of three years’ duration with the special conditions that you undergo supervision and assessment and treatment for mental health conditions and drug addictions including testing, together with anger management programs.
40 In view of your physical disability and secondary adjustment disorder, it is not necessary for you to undertake any community work.
41 I make the following declaration. Pursuant to s6AAA of the Sentencing Act, but for your plea of guilty, I would have imposed a term of imprisonment of four years, to serve two and a half years.
42 I make the following declaration of pre‑sentence detention. I declare that you have spent 356 days in pre‑sentence detention and direct that that be entered into the records of the court and reckoned as time served under this sentence.
43 Finally, I make the disposal order sought.
44 I make a note on the record that Mr Sayour has been explained the nature of the order and consents to the order. He understands the core conditions and special conditions of the order. He has been advised in respect to the consequences and penalties that apply should there be a breach of the order and if there is further offending, he will be dealt with in respect to that, in addition to the breach and being re-sentenced on these charges.
45 That completes my sentencing remarks. I have signed the Community Correction Order and I just ask Ms Karapanagiotidis if you could accompany my associate so that that can be signed.
46 MS DUNHAM: Yes, Your Honour. Your Honour, would you like a copy of the disposal orders to sign?
47 HER HONOUR: Yes please. So on my reckoning, Ms Karapanagiotidis, I think your client has got another eight days.
48 MS KARAPANAGIOTIDIS: Yes, Your Honour. Thank you.
49 HER HONOUR: Unless there is other days credit that he gets?
50 MS KARAPANAGIOTIDIS: I do not think that happens anymore but thank you, Your Honour.
51 HER HONOUR: No. All right. So he understands the sentence? You are happy with - - -
52 MS KARAPANAGIOTIDIS: He does understand the sentence, consents to the order as indicated.
53 HER HONOUR: Thank you for your assistance. So that matter is concluded. You can take Mr Sayour back down to the cells, thank you.
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