Director of Public Prosecutions v Sheikh
[2013] VCC 764
•12 June 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-11-01402
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HUSSEIN HASSAN SHEIKH |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 May 2013 | |
DATE OF SENTENCE: | 12 June 2013 | |
CASE MAY BE CITED AS: | DPP v Sheikh | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 764 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Intentionally causing serious injury – threat to inflict serious injury
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic);
Cases Cited: DPP v Gull [2003] VSCA 123; Verdins;Buckley;Vo (2007) 16 VR 269.
Sentence: 5 years 6 months imprisonment with minimum of 3 years 6 months imprisonment to be served before being eligible for parole.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S Pillai | Office of Public Prosecutions |
| For the Accused | Mr S Moglia | Doogue, O’Brien & George |
HIS HONOUR:
1 Hussein Hassan Sheikh, you pleaded not guilty to the following offences:
(a)That at Flemington on 27 January 2011 you intentionally caused serious injury to Jeremy Elliott without lawful excuse; and
(b)That at Flemington on 27 January 2011 you made a threat to inflict serious injury on Abdullahi Mohamed.
2 You stood your trial, and on 26 March 2013 you were found guilty on each charge by a jury. On that date you were remanded in prison, and the matter was adjourned for plea on 23 May 2013.
3 The offence of intentionally causing serious injury is contrary to s.16 of the Crimes Act 1958 and carries a maximum penalty of 20 years’ imprisonment. Furthermore, such an offence is a “serious offence” within the meaning of s.4 of the Sentencing Act 1991. The offence of threatening to inflict serious injury is contrary to s.21 of the Crimes Act 1958 and carries a maximum penalty of five years’ imprisonment.
Circumstances of the offending
4 You were born in Somalia, as was one of the victims, Abdullahi Mohamed (“Mohamed”), and you were known to each other from boyhood through the Somalian community. At the time of the offences, Mohamed was living in a homosexual relationship with the other victim, Jeremy Elliott (“Elliott”) in a flat in a large block of flats situated in Flemington. Such relationship had been existing for a number of years, and you knew of such relationship and had met Elliott on several occasions prior to the offences. According to Elliott there had been a degree of sexual intimacy between him and you at both a nightclub and a private residence.
5 On the day before the offending, you had attended the flats and there was some degree of altercation between you and in particular Mohamed, causing each of you to independently contact police, making complaints about the other.
6 On the following day, 27 January 2011, the prosecution case was that you returned to the block of flats and came outside the flat inhabited by Mohamed and Elliott, at which time Mohamed was present with another friend who had the nickname of ‘Diego’. At that time, Elliott was still at work.
7 Mohamed gave evidence that you were standing outside the front of his flat, speaking Somali in a “loud and aggressive” manner, and, in particular, stated:
“He said to come outside, he’s here to finish me off and he would chop my head off and he has called every Somalian restaurant and told them about me and Jeremy.”[1]
[1]T303 L39–T304 L1
8 Furthermore, you told Mohamed that you were there to “finish off what he started yesterday”. Mohamed, when quickly looking through the door, observed you to be holding something wrapped in paper which was about 20 cms “big”. Mohamed “tried to stay calm”, rang the police through Triple‑0, and held the phone so as the operator could hear the yelling and threats emanating from outside the front of his door.
9 Whilst such activity was going on, Elliott exited the lift on the floor where his flat was situated on his way home from work. On viewing you outside the unit, he turned around and started running. During this time he became aware of you bringing your hand from behind your back and holding a knife. When running, Elliott yelled to you “What are you doing?”, and obtained no response. When running away, Elliott slipped over, and he remembers you coming and standing right in front of him, and the following evidence was given:
“What did he do when he was standing right in front of you?---He was just, like, yeah, stabbing me. I think – I can’t really remember. It was like really fast.
…What position were you in when you slipped over?---I was on my back, yeah, because I was trying to get – probably like – yeah, I was on my back.
What position were your legs in while you were on your back?---Trying to kick him away. He was reaching over trying to stab me and stuff.
When you just demonstrated with your arm, with your hand up, is that what you recall how he stabbed you?---Yeah.
If you can indicate?---I think one of them, it was like, it was down.
You are indicating with a clenched fist upwards, coming down. Is that what you recall?---I was on my back trying to kick him away and he was reaching over trying to stab me.
Where did he stab you?---I think one of them – I am just guessing because of the way I am cut.”[2]
[2]T214 L19–T215 L8
10 Later, Elliott also gave the following evidence:
“What were you doing when he was standing over you and you were flat on your back? You have indicated you were trying to kick him away; were you doing, anything else?---I was screaming at him, like, what’s he doing. Like screaming out for help or something, I don’t know.
Were you doing anything else apart from trying to kick him away?---No, no.
Had you done anything to him or made contact with him prior to him stabbing you in the way you have described?---No.
Apart from asking him, ‘What are you doing?’, had you said anything to him that day on 26 January?---No, I hadn’t seen him.
After you saw him, and you have indicated that you saw him with a knife and you have demonstrated the movements, what happened?---I think, I can’t really remember the order, but I remember Abdul coming, there was a couple of ladies that come out of their flat, there was a couple of kids, but he ran off towards the stairwell and I was just, like, covered in – there was blood everywhere. I was freaking out.”[3]
[3]T215 L17–T216 L4
11 Elliott described the knife as a kitchen knife with a 10‑cm handle and a 20‑cm blade.
12 Medical evidence was given by a vascular surgeon who treated Elliott in the emergency department of the Royal Melbourne Hospital on 27 January 2011. He described Elliott as suffering two injuries: one being a laceration to the front of the thigh, and the other a laceration to the wrist. The laceration to the thigh was potentially life-threatening, as it involved the main artery (the femoral artery) and vein in that leg, which are about 5 cms under the skin. The laceration to the wrist involved one of the arteries of the hand being cut in half. Furthermore, he described how Elliott was in stage 3 or stage 4 shock, which usually means that he has lost about two litres of blood, and most people normally die with such a loss.
The victim impact statements
13 The Crown tendered victim impact statements from Mohamed and Elliott. Counsel for the prosecution had instructions pursuant to s.8Q of the Sentencing Act 1991 to read part of the statement of Elliott. Mohamed describes in his statement that leading up to the subject offences he had been in a relationship with Elliott for some five years, had moved to his own place, had a job, and everything was “going well for me”. Following the offences he lost the relationship and his new rental accommodation. He felt “betrayed and hurt badly, and due to this [he] was having trouble eating, sleeping,” and finding it hard it hard to trust anyone.
14 Mohamed stopped studying and became depressed and angry, and commenced to become addicted to marijuana to “bury” his pain and relieve any stress. He has also sought psychiatric assessment and treatment for the stress that the trauma caused him.
15 As a result of the matter proceeding to court, his sexual orientation has been revealed, and because of his Muslim background he was “kicked out of home” and the relationship between him and his parents and siblings has broken down. Furthermore, within the Somalian community his sexual orientation is now known, and he is looked at “like I am some sort of freak”.
16 Elliott describes that he has suffered a severed artery and muscle damage to his leg and cut tendons, a cut radial artery and nerve damage in his right arm. He was unable to walk unsupported for four weeks, unable to use his right hand and arm for three months. He underwent months of physiotherapy and painful exercises to build up the strength and use of his leg, arm and hand. He has scars where he has been stabbed, and, although his strength has recovered in his right arm and hand, he still has some sensitivity and tingles in that area.
17 After the offences, he had to move home with his parents, as he was generally incapable of cooking, dressing, showering and travelling to various appointments. He describes how he was unable physically and emotionally to work for over twelve months, and even now does not have the same confidence that he had prior to the offences.
18 He has trouble trusting people, and following the offences his relationship of five years with Mohamed came to an end. He has also experienced nightmares, worrying about his safety as well as his former partner and the safety of his family.
Record of the prisoner
19 There is no dispute that you have committed the previous offences:
(a)On 29 April 2005 at the Sunshine Magistrates’ Court you were found guilty of shop theft and giving a false name when requested. No conviction was recorded, and the matter was adjourned to 28 April 2006.
(b)On 9 October 2006 at Melbourne Magistrates’ Court you were convicted of theft and fined $200.
20 I was also informed that you further offended on 10 November 2010 when you were involved in a theft from a shop. On 25 May 2011 at the Melbourne Magistrates’ Court you were convicted and the matter adjourned to a further hearing on 22 May 2012 with the condition that you undertake a mental-health treatment plan as outlined by the Court Integrated Services Program. It is common ground that there was compliance with that undertaking to obtain mental-health treatment.
The plea
21 Your counsel, in support of your plea in mitigation, tendered the following documents:
(a)Report of the clinical psychologist Mr Antoni Centofanti (Exhibit 1);
(b)Report of the psychiatrist Dr Lester Walton dated 23 May 2013 (Exhibit 2);
(c)Report of the clinical and forensic psychologist Ms Carla Lechner dated 11 May 2013 (Exhibit 3);
(d)Character reference dated 14 May 2013 from Mr Adam Mohamed, the public relations officer of the Australian Muslim Social Services Agency (Exhibit 4);
(e)Statement from Ms Josephine Butera, the Youth Pathways and Transition Co-ordinator at the Maribyrnong College. Such statement is undated, but I was informed from the Bar table that such report came into existence recently (Exhibit 5); and
(f)Statement of your mother dated 6 May 2013 (Exhibit 6).
22 You are 30 years old, having been born on 5 May 1983, and were 27 years old at the time of the offences. You were born in Mogadishu, Somalia, and were one of seven siblings, having four brothers and two sisters.
23 Because of the war raging in Somalia, your parents and siblings moved around Somalia for a number of years before moving to Kenya, where you lived for four to five years. When aged about six or seven, you witnessed the death of two of your brothers within a year due to illness. You attended three years of primary school in Mogadishu, but as a result of the war in Somalia you were forced to leave school and seek shelter at different places through Somalia with your family. You, according to some reports, recall various incidents of violence, sometimes involving your family, and in particular witnessing the death of a villager when you were only seven years old, and seeing the villager’s “stomach coming out”. At one stage you were billeted with older cousins for about six months, and during such time you were bullied by your older cousins and physically disciplined by an uncle using belts and sticks.
24 You came to Australia in 1997 with your family as a 15‑year-old, being sponsored by an aunt. Shortly after arriving in Australia your mother and father separated, leaving your mother to support and raise you and the children.
25 You attended the Maribyrnong College from 1999 through to 2003 when you completed your Year 12 VCE, and Josephine Butera in her statement describes you as an “enthusiastic and hardworking student with excellent goals to achieve his personal best in life”.
26 However, she does note that as an African refugee from Somalia you did experience severe learning difficulties due to interrupted learning and trauma from civil war experiences. She further notes that although you displayed problems in your learning you were always prepared to try as much as you could. Initially you experienced some bullying due to your learning difficulties, but later made a good group of friends.
27 Ms Butera notes that when your home situation deteriorated due to the separation of your parents, much responsibility was placed on you to help your mother with the care and upbringing of your younger brothers and sisters. In such circumstances it caused difficulty, as you were missing school, and your home environment was not appropriate for study or homework.
28 On leaving school you did attempt some TAFE training, but ceased after a short period. Over the years you have done some work as a door-to-door salesman, hospitality work in various theatre, and some security work.
29 In his character reference, Mr Adam Mohamed comments that you have used the Muslim Social Services Centre and has helped with some voluntary work in the community every now and then. Mr Mohamed notes that you were found to be a “polite, respectful, and quite [sic] person”. He also notes that you had some difficulty in school because of family problems, learning difficulties and peer pressure.
30 Your mother highlights in her statement that you were a young teenager who experienced a civil war in Somalia, together with the “horror” of your sibling dying in your presence. Furthermore, she highlights the difficulties of arriving in a foreign land and assimilating into a new culture, which was made more difficult with her separation from your father.
31 Mr Centofanti notes that he was your treating clinical psychologist for a period of ten sessions from 26 August 2011 to 12 April 2012. You were referred to him by Dr Foenander, and although such attendances were “court ordered”, he noted that you showed a real interest in participating in the therapy. In his report, Mr Centofanti sets out his clinical impressions in summary in the following terms:
“Mr Sheikh presented as a 28-year-old single, unemployed Somalian-born man of Muslim faith, with dysthymic disorder, features of social anxiety and anger-management difficulties. His current presentation appears on the background of a tumultuous, unstable and desperate childhood as a refugee in Somalia, separated from his parents and caring for his dying elder siblings. It appears such experiences have provided a foundation for Mr Sheikh’s development of core beliefs and mistrust towards others and low self-worth.
Although he appeared to minimise the issue of his sexual identity, I believe that Mr Sheikh was struggling significantly with this. He appeared conflicted due to both real and perceived prohibitions towards homosexual relationships from his Muslim religion, his family and society in general. This was perhaps an important contributor to his poor self-esteem and confidence, requiring further exploration. In my opinion, the issue of his sexual identity is a likely contributing factor to both his dysthymic and social anxiety symptoms.
Mr Sheikh’s current symptoms appear to be maintained by social isolation, difficulty managing relationships, his legal problems, and difficulty settling on a career path. He appeared to have no positive role models or peers in his life to provide guidance. His limited engagement and benefit from therapy may have been partially the result of his mistrust of authority figures, and partially influenced by cultural differences between Mr Sheikh, myself, and the inherent cultural values of psychological therapy. A number of key protective factors for Mr Sheikh were that he appeared to be a bright young man, was linked to an employment agency, and was attempting linkages amid the community ...”
32 After her examination on 7 May 2013, the psychologist Carla Lechner concluded:
“... I note that he has a very limited prior history of offending and none of this nature. Mr Sheikh emanates from an extremely traumatic background characterised by exposure to war, violence and death (of two siblings). Although glad to be in Australia, he found the adjustment difficult, especially after his parents separated. Mr Sheikh has had particular difficulty in establishing a sense of identity and belonging. I suspect that he is also struggling with his sexual identity, but in light of the cultural and religious taboo attendant to homosexuality he finds it impossible to acknowledge this. His involvement in this matter appears to stem from sexual tensions between the parties; at the very least, Mr Sheikh’s belief that one or both parties were trying to impugn his reputation. He does not present as inherently violent in nature, and presents with a favourable prognosis, but would benefit from counselling supports ...
At interview, Mr Sheikh presents as capable, reflecting on the impact that his behaviour has on both himself and others, but easily overwhelmed by social and emotional factors that undermine his judgment and decision-making. He is able to identify some triggers to his negative feelings, but is inclined to deny or minimise the extent of his internal distress. His history suggests he has been dysthymic in mood for much of his adult life. He is currently evidencing symptoms of a mild/moderate associated ‘range of depression’.
The issue of remorse could not be addressed in view of the fact that Mr Sheikh maintains that he was not responsible for the victim’s injuries. It would appear that the conflict between the parties related to some form of sexual tension. Mr Sheikh expressed regret that the victim was hurt.”
33 In particular, Ms Lechner also comments that you present with a favourable prognosis for rehabilitation and that you “may benefit” from a lengthy parole period that provides you with support and supervision in the community.
34 After his examination of you on 17 September 2012, Dr Walton concluded:
“On the basis of the information I have to hand thus far (limited), necessarily I am constrained from expressing an unequivocal psychiatric opinion. I am satisfied that currently Mr Sheikh does not exhibit widespread evidence of psychosis. ... Rather than being afflicted by psychotic illness, I believe that it is more likely that Mr Sheikh had experienced what was to him thoroughly disconcerting sexual attraction, more likely towards Mr Mohamed than Mr Elliott. This frame of mind is offensive to him because of his religious beliefs, and the emotional turmoil has emerged as aggression primarily directed at Mr Sheikh’s longstanding friend’s lover. Mr Sheikh is a man of normal intelligence without significant cognitive deficit. There are no issues surrounding substance abuse.
Presuming that a diagnosis of psychosis can be safely excluded, about which there is some doubt, then there would be no basis for a defence of mental impairment. That said, my understanding is that Mr Sheikh’s misconduct does arise from intense psychological conflict rather than more conventional criminal motivation. ...
In the face of Mr Sheikh’s denial of any wrongdoing, and presuming that the facts may be proven, I can offer only the most general advice regarding disposition. It is reassuring that Mr Sheikh does not seem to have an established history of prior violent offending, as that is the most reliable of a number of unreliable predictors of recidivism specifically in that regard. ...
Mr Sheikh’s lack of expression of remorse does not amount to an inherent lack of capacity in that regard, but is a reflection of his unresolved psychological conflict surrounding homosexual issues and, in particular, his likely confusion directly in relation to the victims.”
35 On the basis of such material, your counsel submitted essentially the following matters:
(a)Your sense of identity has been “particularly hampered by a range of factors including war, dislocation and family disruption”. Notwithstanding, the character references suggest quite a positive “pro‑social attitude to life”. Furthermore, there are pressures related to sexual identity issues. In such circumstances, it is submitted by your counsel that you were a young man under extreme pressure when the offences occurred. In particular, it was submitted that the offences should not be seen just as “random violence”, but rather resulting from “intense psychological conflict”.
(b)Your counsel accepted that clearly “punishment and denunciation” are important in this type of case. Furthermore, in reference to general deterrence, which is “often said to come to the fore” in this type of case, reference was made to the Sentencing Advisory Council’s report of 2010 which, it was submitted, suggested that increases in sentence beyond, say, a term to be served immediately, in the aim of increasing general deterrence, is not borne out by “experience”. Your counsel did accept that general deterrence is a mandatory consideration within the Sentencing Act.
(c)Although accepting that the so-called Verdins principles have no direct relevance, it was submitted that the totality of the evidence would suggest the psychological forces at work at the time of the offending reduce your moral culpability as compared to someone with no such psychological background.
(d)In relation to specific deterrence, it was submitted that this offence was “out of character” and that your record would suggest no offences involving violence. In such circumstances, it is submitted that there should be some moderation in relation to both general and specific deterrence.
(e)Considering your relatively youthful age, it was submitted that rehabilitation is relevant to the issue of sentencing. In this respect, it was submitted that you have shown some intention to try and help yourself by your attendances on Mr Centofanti.
(f)Your counsel, although accepting that you have not accepted that you performed the acts in question, and of course there can be no remorse, does point out that you did exhibit some degree of empathy when you said to Ms Lechner that you felt “sorry for the victim. No one should go through that.”
(g)Although accepting that the type of offences involved a custodial sentence, your counsel stressed that you are “a first-time person in jail, and that will have its own traumas and effects”. In this sense, it was submitted that you are inexperienced, have a level of vulnerability because you have not lived in a criminal milieu, and have not been before the courts for any particularly serious offence before these offences. Furthermore, the psychological vulnerabilities, as identified by the various reporters, are unlikely to be “dealt with satisfactorily in custody”.
36 In all the circumstances, it was submitted by your counsel that the custodial sentence should be towards the lower end of the range with a lengthy non-parole period in the order of 50 per cent of the head sentence.
37 Your counsel made reference to a sentencing snapshot dated June 2012 (Exhibit C) wherein it is recorded the average sentence for intentionally causing serious injury over the period from 2006 to 2011 was in the range of four years to four years, nine months. In addressing the court, your counsel submitted that a sentence consistent with such a snapshot would not give rise to error. Counsel also made the general submission that in relation to the intentionally causing serious injury offence, there was no clear evidence of a “carried-out implementation of a pre-conceived plan”.
38 Of course, counsel accepted that the court must work on the basis that the jury accepted that you intentionally caused serious injury to Elliott. Furthermore, your counsel accepted that you carried the knife with you to the event, and that may represent an intention to use the knife to threaten to kill, but there was no evidence as to when the intention to cause serious injury occurred. Counsel also accepted, appropriately in my view, that given the nature of the two offences – one peculiar to Mohamed and one peculiar to Elliott – there could not be complete concurrence of sentences.
The Crown position
39 Counsel for the DPP submitted that the offence involving intentionally causing serious injury was a “deliberate, unprovoked, horrific attack on a young man going about his daily business”. Such offence occurred in a public thoroughfare of a housing commission flat, was witnessed by residents, including children, who would have heard the commotion. In particular, it was submitted that such an offence is at the “top end of the sentencing range for an offence of this kind”. Counsel also noted that the sentencing snapshot makes no distinction between a finding of guilt after a trial and entering into a plea when an accused would have the advantage of s.6AAA of the Sentencing Act 1991.
40 Counsel for the Crown submitted on instructions that an appropriate sentence range was in the order of six to eight years, with a non-parole period of four to six years. In this sense, counsel highlighted that obviously there was no guilty plea, and the absence of any display of remorse.
41 Furthermore, in relation to the charge of threat to inflict serious injury, counsel stressed that it was known to Mohamed that you had a knife, and the content of the Triple‑000 telephone call indicates the fear and concern that Mohamed had when confronted with the threat outside the door of his flat.
42 Counsel for the Crown submitted that general deterrence and specific deterrence are important aspects in crimes such as those committed by you, particularly where the assault is unprovoked and in a public place. In this respect, counsel referred to DPP v Gull [2003] VSCA 123 as an example of where courts do put emphasis on general and specific deterrence involving crimes of violence.
43 Counsel for the Crown also queried the legitimacy of the submission made by your counsel that, given your long-term circumstances and the matters referred to by the various psychologists and psychiatrists, you should be viewed as having reduced moral culpability. In particular, it was submitted that the link between the offence and “reduced moral culpability” is a difficult submission, bearing in mind that no reliance was based on Verdins-type principles.
44 Counsel for the Crown also submitted and made reference to three aspects of the evidence which it was submitted highlighted your “intention”. First, reference was made to you being “angry and upset” about the relationship between you and Mohamed falling out; the incident the previous day and your comment that you were there to finish off what happened yesterday; secondly, the question at 113 in the record of interview which would suggest a degree of retribution following on from the day before; and thirdly a reference in the Walton report suggesting “aggression” primarily directed at “Mr Sheikh’s longstanding friend’s lover”. Counsel also stressed that notwithstanding the lack of prior convictions for violent offending, specific deterrence is relevant, and in this respect reference was made to the Walton report where it is recorded that you had been involved in about ten physical fights throughout your entire life.
Conclusion
45 I accept the submissions of those acting on behalf of the Crown and you that the only appropriate sentencing disposition in relation to you is a period of imprisonment. Although it is not clear what transpired between, on the one hand, you, and, on the other hand, Mohamed and Elliott, on 26 January 2011, that is, the day before the offending, I do consider that the offences committed by you on 27 January 2011 were deliberate and unprovoked. In particular I accept that you took a kitchen knife to the premises of Mohamed with the intention to threaten to inflict serious injury on him. Furthermore, I accept that although the knife was brought to the premises by you, it was not until you were confronted by Elliott returning home from work that any intention was formed to intentionally cause serious injury as demonstrated by the stab wounds suffered by Elliott.
46 Both events were frightening, carried out in public and in the surrounds of public housing. In particular, Elliott was simply returning home from work when confronted by you holding a knife, causing him to run in fear, and, after a short distance, slipping to the ground, which allowed you to stand over him waving the knife, before, on the evidence, the stabbing occurred. The short time leading up to that offence must have been horrifying for Elliott, and indeed others in the vicinity of the offence when it occurred hearing the screams of “Help” from Elliott.
47 The consequences of such offending have been significant to Mohamed and Elliott, as made plain by their respective victim impact statements. In particular, Elliott suffered significant injuries which were initially life-threatening and which required a substantial amount of treatment and rehabilitation. Both men carry mental scars from the circumstances surrounding the offending.
48 I consider that it is an important factor that you do not accept that you committed these offences, and accordingly there can be no submission that you have shown any remorse for such offences. However, it is to be noted that your limited criminal record would suggest that there has been no history of violence prior to the offences, nor indeed since the offences.
49 After a consideration of the various material submitted on your behalf, I do accept that at and around the time of the offending you were experiencing intense psychological conflict, brought about in part by your previous experiences in your war‑torn country of birth, adjustment in Australia, and in my view, more particularly by sexual-orientation issues coming to the fore when dealing with the relationship between Mohamed and Elliott. Although your counsel expressly disclaimed any reliance on the Verdins principles, he submitted that your moral culpability was less in such circumstances. I would rather view your offending in the terms expressed by Dr Walton when he describes such offending arising from “intense psychological conflict rather than more conventional criminal motivation”.
50 Be that as it may, the nature of the crimes demands denunciation by the community, and considerations of general and specific deterrence are relevant. I generally accept the submission of your counsel that there is the potential for rehabilitation, given your relative youth, your lack of prior convictions for violence, what has been perceived by others as to your attitude in the community, and indeed the way you went about obtaining treatment from Mr Centofanti. Again, I bear in mind the comments of Dr Walton (and other health professionals) that the offending was brought about by psychological conflict rather than conventional criminal motivation.
51 Accordingly, I have tempered, to some degree, the non-parole period to allow you to pursue, hopefully, rehabilitation to avoid this type of offending reoccurring. Although appreciating this is your first period in prison, I do not consider that any period of imprisonment would cause you hardship above and beyond what one would expect as an offender being sentenced to prison for the first time.
52 Accordingly:
(a)In relation to the offence of intentionally causing serious injury you are convicted and sentenced to 5 years’ imprisonment.
(b)In relation to the offence of threatening to inflict serious injury you are convicted and sentenced to 12 months’ imprisonment. Six months of such sentence will be cumulative with the earlier sentence.
(c)The total sentence imposed is 5½ years’ imprisonment, and I order that you serve 3½ years’ imprisonment before being eligible for parole.
(d)I declare that you have served pre-sentence detention in relation to these offences of 80 days.
(e)I further order that the cap which was located at the scene be disposed of.
(f)I further order pursuant to s.464ZFB(1) of the Crimes Act 1958 that the forensic sample and any related material and information attained pursuant to the informed consent given by you on 3 September 2011 be retained for placement on the database.
53 COUNSEL: If Your Honour pleases.
54 MS GODING: Your Honour, just as a matter of completeness I have the original victim impact statement - - -
55 HIS HONOUR: Yes, I was going to raise that. Yes, that is the - yes, no particular issue was taken about that but I did request them and I thank you for that.
56 MS GODING: Yes, so I have that.
57 HIS HONOUR: That will go on the file - yes.
58 MS GODING: Thank you, Your Honour.
59 MR MOGLIA: Your Honour, I note that the last sentence only on the previously provided copy which was unsigned doesn’t appear on the now signed copy and that's entirely appropriate. There was a comment - - -
60 HIS HONOUR: Yes, about - - -
61 MR MOGLIA: About sentence I think.
62 HIS HONOUR: Yes. Sorry, that is satisfactory, is it?
63 MR MOGLIA: Yes.
64 HIS HONOUR: Very well. Any other matters to be raised?
65 MS GODING: No, Your Honour.
66 HIS HONOUR: Yes, I thank you both for your assistance. Perhaps I will - Mr Moglia - today at least but also your predecessor, the submissions made by the Crown, it was of great assistance to me.
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