Director of Public Prosecutions v Shiekh

[2015] VCC 619

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-01546

DIRECTOR OF PUBLIC PROSECUTIONS

v

MOHAMED HASAN SHIEKH

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JUDGE:	HIS HONOUR JUDGE STUART
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	4 August 2015
CASE MAY BE CITED AS:	DPP v Shiekh
MEDIUM NEUTRAL CITATION:	[2015] VCC 619

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	MS D. Manova
For the Accused	Mr T. Lavery

HIS HONOUR:

1Mohamed Hasan Shiekh, you have pleaded to two charges.  Charge 1; recklessly cause injury, carries with it a maximum penalty of five years' imprisonment.  That charge relates to your injury to your sister-in-law, who is also your first cousin by blood.  The second charge relates to you assaulting Mr Yazman, a resident of the premises in which your sister-in-law was residing.  The maximum penalty for that charge is also five years' imprisonment.

2The circumstances surrounding your offending are set out in the summary of prosecution opening, which became Exhibit 1 on the plea.  You and your principal victim, Ms Ali, had known each other all your lives.  There was a close relationship between yourself and her, and, indeed, the wider family.  In 2004 she separated from your brother.  During the ensuing time there has been a close relationship between yourself and her, which, at times involves violence by you towards her.

3The offending in question occurred on 8 February 2014.  At that time you were on parole in relation to other offending against her, which I will come to in due course.  Albeit, it was late in that parole period.  As is patent from all the materials, and, indeed, the events surrounding your offending on this occasion and in the past, your violence was alcohol fuelled.

4On the evening of 7 February 2014 Ms Ali had visited friends who had recently returned from Africa.  The two of you communicated throughout the day, and she returned home with her young children at around midnight.  She received a call from you in which you indicated you wanted to visit her.  She agreed that you should come over after she had put the children to bed.

5In the early hours of the following morning, 8 February, you came to the high rise flats where she was living and went to the 19th floor.  Having arrived, you indicated you wanted to sleep over at her place, and then helped yourself to some vodka that was in the fridge which you had left behind on a previous occasion.

6Some hours later, at 5.30, you asked her to wear a dress which had been sent from Africa for her.  An argument developed when she refused to put the dress on.  During the course of that argument you punched her to the side of the face.  She asked you why you had hit her and you said, "I'm going to go all the way."  You grabbed her hair and pushed her face into the couch.  You grabbed the head of the vacuum cleaner and began to hit her repeatedly in the face with it.  You were yelling out that if you were going to go to gaol you might as well finish her off.  She, unsurprisingly, feared that you would kill her and the children.

7During this unwarranted beating by you of her, her children woke up and began screaming.  One of them picked up the youngest, Aisha, who is but one year old and threw her towards her mother.  This had the effect of calming you and you stopped hitting Ms Ali, saying, "Aisha saved your life."  She then asked you to call your brother, her husband, and told him that she needed to go to hospital because you had hurt her badly.

8Another resident on the same floor, Mr Yazman, was going about his domestic duties.  He returned from the supermarket at about 8 am.  When the lift arrived the doors opened and you were seen walking past that area.  Your brother exited the lift and you immediately entered and began to punch and kick Mr Yazman.  Your brother can be seen trying to separate you from him.  He suffered a bloody nose and a sore head.

9The injuries to your sister-in-law were much more extensive.  She suffered confluent bruising to her left cheek, purple, swollen eyelids and a laceration to her left cheek approximately two centimetres long.  In addition, there was ten centimetre long skin tear and to her left arm bruising and swelling over the wrist and what appeared to be a bite mark.  To her right arm there was also bruising to her forearm, with loss of skin over the elbow and a long scabbed scratch on the forearm.  To her neck there was bruising high and under the jawline, and to her right shoulder bruising over the interior shoulder, as well as a laceration to the right scalp area.

10The injuries were photographed in hospital and those photographs became Exhibit 2.  They show the extensive consequences of your unwarranted and entirely unprovoked attack upon her.  Furthermore, later photographs, which became Exhibit 3, show the scarring, which is permanent, to the left jawline of her face.  To your credit you later surrendered yourself to the informant in this matter.

11I have made mention of the fact that you are on parole in relation to this matter. Indeed, on 15 July 2011 you were sentenced by Her Honour Judge Campton in relation to the earlier attack upon the same victim, who is your sister-in-law.  You were there charged with intentionally causing injury, make threat to kill, and other matters of less moment; two charges of theft, and in addition, a charge of contravening a family violence intervention order.  You were then sentenced by Her Honour to two years and eight months, to be served concurrently with the sentence now served with a non-parole period of 18 months.

12Her Honour set out the circumstances of that offending, which occurred on Tuesday 10 November 2009.  That offending occurred at a point of time when she was heavily pregnant.  Other matters are set out in Her Honour's reason for sentencing which relate to a charge of threat to kill.  I do not intend to rehearse the circumstances as set out in Her Honour's sentencing remarks, save to say those circumstances are set out in paragraphs 3 to 15 inclusive, in dealing with all the matters before her Honour.

13You had also previously been dealt with by another judge at this County Court, Judge Duggan, on 25 February 2011, where you were dealt with for a charge of armed robbery and sentenced to a period of 18 months, six months of which was suspended for a period of two years.

14Your history also includes other occasions where you have been dealt with for offences of violence.  In particular in November 2002 before the Melbourne Magistrates' Court where you were charged with three charges of unlawful assault and three charges of threat to kill, stalking another person and assault by kicking, recklessly cause injury, criminal damage and breach of an intervention order, and six years later, again in the Melbourne Magistrates' Court, in February 2008 of unlawful assault.

15Thus, you have had four occasions where you have been dealt with four crimes of violence.  Were it not for a number of mitigating circumstances you would find yourself imprisoned on this occasion for a very lengthy period of time.  This matter came before me as a trial yesterday.  The matter resolved yesterday and I have commended both parties for the satisfactory resolution of a trial which otherwise would have taken in the vicinity of some 10 days.  Thus, the utility of your pleas of guilty of considerable significance in this matter and in the circumstances I further accept your pleas of guilty as being evidence of some insight by you and some remorse by you for your most recent offending against your sister-in-law.

16In Judge Campton's sentencing remarks Her Honour at paragraph 21 stated that, when sentencing you for the armed robbery, Judge Duggan described your background as a tragic story and a story of incredible deprivation and difficulty.  I would have to agree with that description.  Her Honour then sets out the circumstances of your personal history.  In a report prepared for that hearing, psychologist Guy Coffey, dated 22 February 2011, also set out your personal history.  He noted that you came to Australia with your parents and six siblings in June 1997 when you were but 16 years old.  You had been sponsored by an aunt and came to Australia under Australia's Humanitarian and Refugee Resettlement Program.  Your family had been living in Kenya for about five years, having fled from Somalia in 1992 due to the civil war in that country.  That civil war became known for its brutality at the highest level.  You were the sixth of ten children.  Three other of your siblings died in childhood, two of Malaria, you surviving that same disease.  You saw people killed in the streets.  You saw rape.  You suffered violence yourself in your everyday activities in order to try to survive during that period of time with your family.  Your background in that regard as set out in Mr Coffey's report makes for the most disturbing reading.  I have no doubt that you as a child and as a young teenager were grossly traumatised by the brutal things that you saw on an everyday basis. 

17Unsurprisingly, upon your arrival in Australia you had enormous difficulties settling in.  You undertook a Year 10 in 1998 but as a result of a bike accident where you broke a collarbone you were hospitalised and did not return to school.  You commenced drinking at around the same time and using cannabis.  Alcohol has plagued you from then to now.  You are now a 34 year old man.  Indeed, alcohol has caused you to lose employment, not to be able to maintain relationships and generally resulted in your breakdown and your inability to become a useful member of this community.

18That alcohol abuse has continued unabated other than periods of time whilst you have been in custody and, to a lesser degree, on parole.  It has, as Mr Coffey has observed, interfered with your social and occupational functioning.  To your credit, I accept that you are, as you were at the time of interview by Mr Coffey, prepared to rehabilitate yourself.  Mr Coffey noted at paragraph 73 there were no post-traumatic re-experiencing phenomena relating to the experiences from childhood in Somalia or other subsequent experiences, stating: “He remained composed when describing his childhood experiences but was clearly still moved by them, particularly the deaths of his brother and sister while in their presence."  He assessed you as not suffering any mental illness at that time though observed you to be somewhat depressed but short of clinical depression.  He considered you to be a person of normal intelligence.  He did not find any evidence of antisocial personality disorder or psychopathetic traits. 

19He concluded in this way at paragraphs 93-94:

"Mr Shiekh did not seek assistance for his alcohol abuse.  He claims to have felt embarrassed and ashamed of his problem.  It is likely he also minimised the extent it was controlling his life.  Mr Shiekh often alluded to his faith's condemnation of his conduct.  He contrasted his own life with that of his devout mother." 

20Mr Coffey continues:

"Unfortunately Mr Shiekh's faith, in the absence of concomitant therapeutic assistance, has condemned and stigmatised his behaviour but has not provided him with the means to overcome his addiction. 

Mr Shiekh appears to have engaged well during the relatively short period of drug and alcohol treatment he received, but rapidly relapsed when treatment ceased.  The longevity of his alcohol problems indicate that he will not recover from his alcohol dependency until he receives extensive community based rehabilitation.  This will require at least nine months of intensive psychological treatment, possibly supported by pharmacotherapy, and at least two years of ongoing treatment.  Associated psychological problems involving mood instability, emotional lability and trauma-related insecurities need also to be addressed.”

21It is to that aim that I have to fashion the sentence, namely to ensure that apart from punishment you will receive assistance upon your release back into the community if not today then in very near future.  As I discussed with counsel, the period of imprisonment that I consider appropriate in this particular case combined with a Community Corrections Order would have been 18 months' imprisonment.  You have already spent in excess of 14 months in prison.  That period of imprisonment most recently includes what has become known as the prison riots at the MRC which occurred on 30 June this year and the repercussions of which continue to the present day.  On that day you, when the riot commenced, were locked in your own cell and remained in your own cell during the period of the riot.  That, without doubt, was a most turbulent experience for you, for nearby other cells were set alight.  I have been advised by Mr Lavery, consistent with other information I have received in another matter, that as a result of you being locked down for 24 hours per day until very recent times where you had been allowed with others for exercise for some half hour or so, has meant that you and others in your circumstances will receive a calculation of your pre-sentence detention for each day of your lockdown giving rise to a credit of four days.  This means that you have in excess of three months in addition to the 14 months that you have literally served in prison and in the circumstances where you have suffered the results of that riot at first hand, I am satisfied that I ought reduce the sentence I would otherwise impose by a period of four months which includes the additional three months that would be credited to you in ordinary circumstances.  That means that the sentence that I would otherwise impose of 18 months imprisonment will be reduced to a sentence of 14 months imprisonment as being an aggregate sentence in relation to both Charges 1 and 2.  Furthermore, should you consent I will release you on a three year Community Correction Order which, in addition to its usual terms, will have requirements that you receive treatment and rehabilitation, that you be under the supervision of a Community Correction Officer, that you receive mental health assessment and treatment and engage in other offending behaviour programs as directed. 

22In arriving at that sentencing disposition, I am mindful of the serious nature of your offending.  Women are entitled to go about their ordinary domestic business without being confronted by drunken men in their own homes, threatening them, assaulting them and ending up hospitalising them.  Our community expects no less.  Those such as you who decide that women are fair game for your violence must learn and you must learn that such behaviour as you have now repeatedly engaged in will not be tolerated.  Thus, it is necessary not only to discourage others from engaging in the conduct that you have engaged in but discouraging you from engaging in any such conduct again.  By giving you the opportunity, if you choose to accept it, to be on a Community Correction Order for three years, I aim to achieve a number of purposes: one, that you receive the assistance that you need to address your issues in the background for I have little doubt that they are at the root of your aggressive behaviour and at the root of your abuse of alcohol, the two of which combine together produce the results that are before me on these two charges.  Furthermore, my aim is to ensure as best I can your final integration back into this community as an individual who will contribute to this community, who will support your family and your extended family rather than be a destructive force within your family.  Thus, by encouraging your rehabilitation the community as well as you will benefit.  I am satisfied in the circumstances of this case that you do have a genuine desire to start again, to rehabilitate yourself and take advantage of the opportunities that I am going to afford you to assist in that rehabilitation through this Community Correction Order.  I make it plain, however, this is no walk in the park for you.  You have got 13 plus years of alcohol abuse.  It is for you to make the decision whether or not you will take this opportunity up or squander it.  Should you breach the Community Correction Order, you will be brought back not before some other judge, you will come back to me.  I will have the benefit of what I have just said and you will doubtless, subject to extraordinary circumstances, be reimprisoned.  The choice for you therefore is a stark one.  Are you prepared to enter into a Community Correction Order?

23PRISONER:  Yes, Your Honour.

24HIS HONOUR: Take a seat. The formal orders are that Mr Mohamed Hasan Shiekh be imprisoned for a period of 14 months and he will be released on a three year Community Correction Order in the terms in which I have indicated and I will declare pre-sentence detention of 445 days. I state for the purposes of the s.6AAA of the Sentencing Act but for your pleas of guilty I would have sentenced you to imprisonment for a period of three years with a minimum non-parole period of two years. 

25MS MANOVA:  May it please the court.

26HIS HONOUR:  This being an extempore sentence, were there any matters that I should correct?

27MR LAVERY:  No, I can't ‑ ‑ ‑

28HIS HONOUR:  Or admissions of any note?

29MS MANOVA:  No, Your Honour.

30HIS HONOUR:  Very well, just give me a moment.  I should add that the sentence I have passed is one which reflects denunciation of this court of your conduct and has an appropriate level of punishment to achieve just punishment. 

31MS MANOVA:  Was Your Honour also to impose a restriction on alcohol consumption?

32HIS HONOUR:  No, I'll leave that to him.

33MS MANOVA:  Thank you, Your Honour.  Then all is in order. 

34HIS HONOUR:  It is part of the decision making process for him rather than me imposing something. 

35Yes, I have made that order and copies will be provided in due course.  Anything else?  Yes, you can remove - Mr Shiekh, as I had anticipated, you will be released from the cells I expect today. 

36PRISONER:  I thank you for that opportunity.

37HIS HONOUR:  Very well.  You have had a hard life, Mr Shiekh.  Now is the time to put it behind you and stop making it hard on others.

38PRISONER:  Yep, thank you very much.

39HIS HONOUR:  All right, take a seat.  Do you wish to speak to your client, Mr Lavery?

40MR LAVERY:  I will go down and see him, Your Honour.

41HIS HONOUR:  Yes, very well.  Remove Mr Shiekh.  

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