Director of Public Prosecutions v Taha
[2016] VCC 2048
•23 December, 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-16-00968
CR-16-01415
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| AHMED TAHA |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 December, 2016 | |
DATE OF SENTENCE: | 23 December, 2016 | |
CASE MAY BE CITED AS: | DPP v Taha | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 2048 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – Sentence – Not guilty plea on first indictment involving charges of aggravated burglary and intentionally causing serious injury - guilty plea to second indictment involving charges of possessing drugs of dependence – application of principles in R v Verdins – extra curial punishment arising from significant gunshot injury suffered during course of the offending – added burden of imprisonment
Sentence:6 years’ imprisonment, with a non-parole period of 4 years’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Vella | Office of Public Prosecutions |
| For the Accused | Mr T. Fitzpatrick | Armour Legal |
HER HONOUR:
1 Mr Taha, the offences for which I am sentencing you today arise out of charges on two indictments. The charges relating to Indictment F12335292A.1, were the subject of a trial before a jury of 12. The jury unanimously convicted you of the charges of aggravated burglary (Charge 1); and intentionally causing serious injury (Charge 2), on 20 October 2016. I had earlier directed your acquittal on the charges of armed robbery (Charge 4); and theft (Charge 5). On 13 December 2016, you pleaded guilty to the charges relating to Indictment F12335292B being charges of possessing drugs of dependence, namely methylamphetamine (Charge 1); and cannabis L (Charge 2), on 23 June 2015.
Circumstances of the offending
2 I turn now to the circumstances of the offending.
3 Dealing first with the charges of aggravated burglary and intentionally causing serious injury in respect of which you were convicted by the jury. It is my responsibility to interpret the facts in a way that is consistent with the jury’s verdict. In this case, I am satisfied beyond reasonable doubt of the substance of the account given by the victim in this matter, Mr Brett Barry.
4 Mr Barry lives at Unit 6/64 Graham St, Broadmeadows. At the time of the incident, Mr Barry was 49 years of age. He suffers from a congenital neurological condition and is on a disability pension. He is assisted in his care by a part-time carer, Mr Greg Reiner.
5
On the evening of 17 May 2015, Mr Barry was at his home with Mr Reiner and two others. Shortly after midnight, Mr Reiner assisted Mr Barry to his bedroom. Mr Reiner left the address shortly thereafter. At approximately 2.30 am,
Mr Barry became aware of the presence of a group of men standing near
a vehicle outside his property, having observed them on surveillance cameras that he is able to monitor from his bedroom. Mr Barry yelled out to the group from his front door and asked a friend at the house to ensure the front door was not opened to the group. Mr Barry then headed to his bedroom, but after hearing yelling at the front door, headed back towards the front of the house, along the hallway.
6 At approximately 2.30 am, you and two co-offenders, the identity of whom is unknown, entered the property through the front door. It is not established that this occurred by force. Implicit in the jury verdict, is that you had no right or authority to enter that property. Immediately entering the property, you and your two co-accused began to assault Mr Barry by repeatedly hitting him to the head and body. One of your co-offenders was armed with a sawn off-shotgun and used the butt of the gun in the sustained attack on Mr Barry. The assault continued as you and your co-offenders ushered Mr Barry through the hallway and into his bedroom. His friends were herded into another bedroom. During the assault, one of the co-offenders alternated between assaulting Mr Barry and going into the other room to ensure Mr Barry’s friends did not intervene or assist him. During the assault, Mr Barry was struck on the head a number of times with the butt of the shotgun with such force that he sustained a fractured skull and ultimately lost consciousness.
7 Whilst the assault on Mr Barry was taking place in his bedroom, the sawn-off shotgun discharged, striking you in the left forearm. The impact of this shotgun blast, at close range, resulted in you suffering serious and significant injury to your left arm. You and your co-offenders then ran out of the premises and drove away from the property.
8 Mr Barry required hospitalisation for the serious head injuries he sustained in the attack. Due to the severity of the skull fracture, he was later transferred from the Northern Hospital to the Alfred Hospital. Dr Bolt, a forensic medical registrar with the Victorian Institute of Forensic Medicine examined Mr Barry at the Alfred Hospital on 18 May 2015. In her report dated 28 May 2015, Dr Bolt outlined the findings of her examination. She found that Mr Barry had multiple lacerations to his head as a result of a blunt force trauma; a skull fracture to the left frontal bone suggesting the application of “significant force”; and an extra-dural haematoma. Mr Barry also suffered an incised wound to his skull; injuries and lacerations to the arms; bruising to the right shoulder; and bruising and abrasions to the chest and hip as a result of the multiple blows he sustained during the assault. In her report, Dr Bolt expresses the opinion that the skull fracture and extra-dural haematoma had the potential to be life-threatening injuries, but in Mr Barry’s case, were able to be treated conservatively and without surgery. Mr Barry was hospitalised for five days.
9 Approximately one hour after fleeing the premises, you were taken to the Northern Hospital and admitted for corrective and plastic surgery. On examination, you were found to have an open wound and fracture to the left elbow, with significant tissue and bone loss compromising the neurovascular function of your left arm. Multiple metal pellets from the gunshot wound were embedded in the arm tissue and removed during surgery. Against medical advice, you self-discharged from the Northern Hospital on 18 June 2015, one month after your initial admission.
10
Tendered in evidence on the plea were two photographs; one depicting your presentation shortly after surgery, and the other following the resolution of the surgery, leaving you with an apparent deformity of your left arm and wrist.
I will return to the relevance of the injuries you sustained during the offence later in my reasons for sentence.
11 You were subsequently arrested by investigators on 23 June 2015. Relevant to the second indictment, you were found in possession of a small amount of methylamphetamine and two clear plastic bags containing a small amount of cannabis L.
12
You were interviewed by police that day. In your record of interview, you told investigators that you attended at the property with the co-offenders, that one of them was armed but that you did not know who, that the reason you all attended the property was because you “guessed one of them was owed or something”. You further stated that you were present in the bedroom, but played no direct part in the assault. You said you were searching through
Mr Barry’s possessions and as you stood on his bed, you were shot in the arm by one of your co-offenders.
13
Mr Taha, the jury has convicted you of serious offending. This was
a confrontational aggravated burglary, involving entry to the home of Mr Barry, in the company with others, in the early hours of the morning, with the intention to assault. Your co-offender was armed with a shotgun. It was a serious example of this kind of offence. In respect of your culpability, the Crown accepts it could not establish that you knew of the existence of the shotgun prior to entering the premises, but I am satisfied beyond reasonable doubt that it was produced immediately upon entry and that, from that time, you were aware your co-offender was armed.
14 The assault on Mr Barry, a man with a significant disability, was sustained and unprovoked. He was clearly defenceless against the attack being made upon him. Although you were not in possession of the shotgun and were not responsible for striking Mr Barry with the shotgun, you certainly participated in the assault and assisted the other offenders by your participation. The injuries Mr Barry sustained were extensive and very serious, particularly by reference to the fractured skull and haematoma.
15 Tendered on the plea without objection was a victim impact statement, prepared on behalf of Mr Barry by his carer, Mr Reiner. This statement outlines the impact the events of the night have had on Mr Barry’s wellbeing and sense of safety. He has sought a transfer to other housing, as he no longer feels safe in his home. I have had regard to the impact of the offending on Mr Barry in sentencing you.
16
As to the charges of possession of drugs of dependence, the prosecution accepts that the small amounts found were for personal use and no more.
I sentence you on the possession charges on that basis.
17 In sentencing you, I have had regard to the maximum penalties for these offences, being 25 years’ imprisonment for aggravated burglary, and 20 years’ imprisonment for intentionally causing serious injury. For the offence of possessing a drug of dependence, being methylamphetamine, the maximum penalty is 30 penalty units or one years' imprisonment, and for possession of cannabis L, it is five penalty units.
18 I turn now to your personal circumstances.
19
You are now aged 27. You were born in Melbourne and are one of ten siblings. Your parents, born in Lebanon, have been married for over 40 years and continue to provide you with emotional support, including during this court process. You completed Year 10, before ceasing studies part way through
Year 11 and have been employed in various casual positions since that time, as a carpenter and in other trade work.
20
You were assessed by Mr Mathew Staios, Consultant Psychologist, on
25 November 2016, for the purposes of this plea. You told Mr Staios that whilst you viewed your childhood in a positive light, you felt that you were often overlooked and struggled to find your place in the family. You told Mr Staios that you were sexually abused between the ages of 12 to 13 and that from the age of 16 years, you began to associate with negative peer groups and started using drugs on a regular basis, including methamphetamine from the age of 18. You told Mr Staios that you were admitted to the Northern Hospital in 2015 with a drug overdose and remained under medical attention for two nights.
21 Your criminal history dates back to 2008 when you were aged 19. In that year, you were sentenced by the County Court to a 12 month term of imprisonment that was wholly suspended for 18 months, and a 12 month community based order on charges of attempted armed robbery and possessing an unregistered handgun. In 2009, you were sentenced to a term of eight months’ imprisonment to be served by way of an intensive correction order on a charge of recklessly causing injury. Between 2008 and 2014, you have been convicted of other offending, including charges of dishonesty, possessing drugs of dependence and driving-related offending. Relevantly, you have also numerous priors for breaching community based dispositions, including a breach of the Intensive Correction Order imposed in 2009, resulting in you serving the unexpired portion of 128 days in 2011.
22 Further, although not a prior conviction, on 17 March 2016, you were convicted of charges including possession of methylamphetamine, entering a private place and contravention of bail and were sentenced to six months’ imprisonment.
23 Mr Staios, in his report, says he assessed you whilst in custody using the Depression Anxiety Stress Scale (DASS-21) and found you are “currently experiencing symptoms of depression and stress in the moderate range and anxiety in the mild range”. He said that based on clinical interviewing, he assessed you as currently meeting the criteria for a diagnosis of a “Major Depressive Disorder (with anxious distress), and Stimulant Use Disorder (in early remission, in a controlled environment)”.
24 Mr Staios says you attribute your offending to poor decision-making under the influence of substances and the influence of negative peers. In his opinion, the combination of “themes of rejection” and the influence of negative peers, have resulted in “maladaptive coping mechanisms and substance use, subsequently impacting on [your] reasoning skills and decision-making capacity”.
25 On your behalf, it was submitted that the opinion of Mr Staios is sufficient to found the application of the principles enunciated in R v Verdins and that general and specific deterrence should be moderated in circumstances where your mental health warrants a reduction in your moral culpability. In my view however, this submission mischaracterises Mr Staios’ assessment of your mental health. What matters is what the evidence shows about the nature, extent and effect of any mental impairment experienced by an offender at the relevant time. Here, whilst Mr Staios finds that you are currently suffering from depression, coupled with mild anxiety, he draws no conclusions as to your mental health at the time of the offending or its nexus with the offending. Accordingly, there is no evidentiary basis upon which I can find your moral culpability is reduced as a result of impaired mental health at the relevant time.
26 It was further submitted that your current mental health enlivens the sixth limb of Verdins in mitigation of sentence. An offender is entitled to such mitigation where “there is a serious risk of imprisonment having a significant adverse effect on an offender’s mental health”. Here the evidence relied upon is the opinion expressed by Mr Staios that,
“From a psychological perspective, given his poor history of psychological health, if required to serve an extended sentence in prison, I am concerned that such a setting could serve to exacerbate his existing psychological vulnerabilities”.
In my view, this opinion is not cogent evidence of a serious risk of imprisonment having a significant adverse effect on your mental health and accordingly, I am not satisfied Verdins applies in mitigation of your sentence on that ground.
27 On your behalf, it was also submitted that the gunshot wound you sustained during the offending and which resulted in a significant injury to your left elbow, constitutes extra curial punishment and that the court should take into account the serious and life-long detriment you suffered as a result of committing the offence. Unfortunately, I have not been assisted in determining this issue with any up-to-date medical material regarding your current condition, although it was submitted on your behalf, and I accept, that you have been left with a notable deformity to your left arm and require daily medication in custody to manage ongoing pain associated with this injury.
28 Whilst there are inherent risks in participating in offending involving an assault with the use of a shotgun in a confined space, I accept that the significant injury you sustained as a result of your role in the offending should be given weight in sentencing. It is certainly a constant reminder of the consequences of your offending. More significantly and of greater weight, I accept that the residual effects of the injury, being the deformity to your arm, noting the submission that this has resulted in taunting and bullying from other inmates, together with ongoing pain, will be an added burden of imprisonment. I have taken this into account in mitigation of your sentence.
29 Finally it was submitted that your plea offer, to lesser offences, and participation in the record of interview, were indicators of your remorse. Reliance is also placed on the statement in Mr Staios’ report that whilst discussing the offending, you expressed remorse for your actions and displayed empathy for the harm caused to the victim.
30 Whilst you are entitled to exercise your right to a trial, I am unable to conclude that an offer to plead to a lesser offences should be taken into account in sentencing as an indication of remorse. Similarly, your limited admissions to attendance at the property during the record of interview are of limited relevance when viewed in the context of the jury’s verdict in this case. I am not satisfied that your participation in the record of interview was indicative of remorse for your offending. I do however, take into account the observations of Mr Staios.
31 Your counsel properly accepted that this was serious offending. The Crown concur and submit that weight should be given in sentencing you to just punishment, general and having regard to your priors, specific deterrence, denunciation and protection of the community.
32 Given your prior history and in particular your history of breaching community based dispositions, I am somewhat guarded about your prospects of rehabilitation. Your rehabilitation is very much dependent upon your commitment to treatment for your drug addiction and decisions you make about those with whom you choose to associate. You certainly have the support of family, which has been evident to me throughout the course of these proceedings. Mr Staios recommends you be referred to a forensic psychologist for treatment to address substance abuse issues, emotional dis-regulation, consequential thinking and depression.
33 Your counsel submits this could best be achieved through a combined sentence of imprisonment and a community corrections order, but in my view, the objective seriousness of your offending and the need to sentence you on both offences in a manner that operates as a general and specific deterrent, precludes such a sentence. I have also had regard to the decision of the Court of Appeal in DPP v Bowden and the need to impose a sentence that reflects the objective gravity of offending involving aggravated burglary. Your sentence must manifest the community’s denunciation for serious offending of this kind and impose just punishment.
34
I have however, taken into account the additional burden of imprisonment and the need to facilitate your rehabilitation in the fixing of your non-parole period.
I have also had regard to the totality principle in determining the period of concurrency which, but for that principle, would otherwise not be ordered.
35 This was, on any view, serious offending. In the circumstances, you are convicted and sentenced as follows:
36 Mr Taha, if you could please stand.
Indictment F12335292A
37 Charge 1 of the trial indictment , Charge 1 being aggravated burglary, you are convicted and sentenced to five years’ imprisonment.
38 Charge 2, intentionally causing serious injury, you are convicted and sentenced to four years’ imprisonment.
Indictment F12335292B
39 On the plea indictment, on Charge 1, possession of a drug of dependence, namely methylamphetamine, you are convicted and sentenced to one months’ imprisonment.
40 On Charge 2, possession of a drug of dependence, namely Cannabis L, you are convicted and fined $800.00, without stay.
41 I direct that the sentence on Charge 1, aggravated burglary, be the base sentence. I direct that one year of the sentence imposed on Charge 2, intentionally causing serious injury, be served cumulatively upon Charge 1. This gives a total effective sentence on the trial indictment of six years’ imprisonment.
42 I direct that the sentence of one months' imprisonment on the plea indictment be served concurrently with the other sentences imposed this day.
43 I direct that you must serve four years’ imprisonment before being eligible for parole.
44 I declare and I will confirm with counsel, that you have served 172 days by way of pre-sentence detention.
45 I also make the disposition order sought by the prosecution. Thank you.
46 MR FITZPATRICK: I am in concurrency with that 172 days, Your Honour.
47 MR VELLA: As are the Crown, Your Honour.
48 HER HONOUR: Thank you. There are no other queries in relation to the sentence?
49 COUNSEL: No, Your Honour.
50 HER HONOUR: Thank you. If you could take Mr Taha.
51 I will adjourn.
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