Director of Public Prosecutions v Tiari
[2022] VCC 2124
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-21-00285
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MEHDI TIARI |
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JUDGE: | HIS HONOUR JUDGE HOLDING | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 November 2022 | |
DATE OF SENTENCE: | 30 November 2022 | |
CASE MAY BE CITED AS: | DPP v Tiari | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2124 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence.
Catchwords: Trial; found guilty; Plea; Aggravated burglary; Intentionally causing injury; Making a threat to kill; Violent attack on former domestic partner; Prospects of indefinite immigration detention; Verdins principles; Contravention of a Family Violence Intervention Order; Factors considered in evaluating the seriousness of an aggravated burglary charge.
Legislation Cited: Crimes Act 1958 (Vic); Migration Act 1958 (Vic); Sentencing Act 1991 (Vic).
Cases Cited:DPP v Meyers [2014] VSCA 314; Filiz v The Queen [2014] VSCA 212; R v Verdins [2007] VSCA 62.
Sentence: Total effective sentence of 6 years 1 month imprisonment with a non-parole period of 4 years 7 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Davison | Office of Public Prosecutions |
| For the Accused | Mr R. Backwell | Greg Thomas Barrister and Solicitors |
HIS HONOUR:
1Mehdi Tiari, you were found guilty by a jury of 12 on 1 August 2022 of the following charges.
(a)
Charge 1, aggravated burglary, the maximum penalty for this offence is
25 years' imprisonment.[1]
(b)
Charge 2, intentionally cause injury, the maximum penalty for this offence is
10 years' imprisonment.
(c) Charge 3, intentionally cause injury, same maximum penalty; and
(d) Charge 4, making a threat to kill, again the maximum penalty for this offence is 10 years' imprisonment.
[1] Crimes Act 1958 (Vic).
2You were also charged with the uplifted summary offence of contravening a family violence intervention order, intending to cause harm or fear, Summary Charge 7. It came to my attention shortly before the plea hearing that this charge which is an indictable offence albeit capable of being determined summarily was incorrectly transferred, rather than committed to this court. I was informed that in any event, the Crown intended to discontinue the prosecution of this charge. I made administrative orders on 14 November 2022, transferring this charge back to the Magistrates' Court, where I understand it will be withdrawn.
3
Before proceeding to sentence, I will first set out a brief summary of your offending. Your former partner, Ms Anderson[2] and a male friend of Ms Anderson,
Mr Giacomo Speziale,[3] were the victims of your offending. You were in a relationship with Ms Anderson for approximately three years, from 2014. You and Ms Anderson have a young daughter, who was born in September 2016. Your daughter resided with her mother after the two of you separated. She was nearly
three years old at the time of your offending.
[2] This name is a pseudonym.
[3] This name is a pseudonym.
4
On 7 February 2019, a family violence interim intervention order was issued at the Heidelberg Magistrates' Court. On 4 July 2019, the same court made a final family violence intervention order. On both orders you were the respondent and
Ms Anderson and her child, Mani Izrac[4] from a previous relationship and your mutual child, Alice Tiari were nominated as the protected persons. A copy of this order was duly served on you.
[4] This name is a pseudonym.
5
On 3 January 2020, Ms Anderson and Mr Speziale and your infant daughter were at Ms Anderson’s home in Thomastown. You attended the home at approximately
11 pm that evening. You walked down the driveway and loitered in the vicinity. Security camera footage showed you peering through windows and attempting to open entry points.
6At 11.17 pm, you found and picked up a rock from the ground. You threw the rock through the living room window of the premises causing the window to smash. You entered the home through the broken window and this conduct constitutes Charge 1, aggravated burglary.
7
You confronted Mr Speziale who was present in the living room. At this time
Ms Anderson was in the bedroom trying to get her daughter to go to sleep. You immediately started punching Mr Speziale and dragged him towards the bedroom. As a result of your punches, Mr Speziale suffered bruising to the eye, and this constitutes Charge 3, intentionally causing injury.
8Ms Anderson was in the bedroom but exited when she heard the glass smashing and the commotion caused by your assault upon Mr Speziale. Ms Anderson started yelling for help and at first did not recognise you. Your daughter started screaming. While still holding Mr Speziale, you grabbed Ms Anderson’s head and pushed it against the bedroom door multiple times. Ms Anderson and Mr Speziale broke free of you and ran through the kitchen to the back door.
9You were yelling such things as, 'You got a boyfriend, you got Afghani boyfriend'. Ms Anderson fled into the backyard yelling for help and you followed her. Evidence was given that you said, 'I'll cut your throat' and then went back and grabbed a piece of broken glass. Ms Anderson’s evidence was that you started waving it in the air.
'He wanted to put it in my throat but he couldn't. I moved my head and instead of my head, my throat, the glass went in my arm - into my arm.'
10The piece of glass struck her inner bicep causing a laceration. This conduct constitutes Charge 2, intentionally causing injury.
11During the incident you made utterances in a language other than English, threatening to kill Ms Anderson. You told her,
'I will kill you. You dating an Afghani man, I will kill you tonight. I will leave you, but you will never be with someone. I - I will kill you.'
12This constitutes Charge 4, making a threat to kill.
13After this incident, you left the scene by car. You attended the Mernda Police Station on 5 January 2020, were arrested and participated in a record of interview. You gave a 'no comment' interview which is of course, your right. You were remanded in custody on this date and have been in custody since.
14Ms Anderson completed a victim impact statement that was read at the plea hearing by the learned prosecutor. I have read that statement carefully and have taken its contents into consideration. Ms Anderson has clearly been emotionally traumatised by your conduct. She suffers from sleeplessness and since the offences, had to use anti-depressant medication twice a day. She says she's living the fear, anger and anxiety and it is affecting the lives of her children. She describes not being able to wear short sleeves, as she has a scar on her arm from where you cut her with a piece of glass.
15Her young daughter questions her about this scar when she sees it. She has to consider laser surgery to remove the scar, but this costs money. She felt she had to move from the property where the offending occurred, and this also impacted her financially. She states she has lost trust in men, and now regards them all as violent, bullying and controlling. She fears this will affect her relationship with her son.
16A victim impact statement by Mr Speziale has not been placed before me, but it was clear when I heard him give evidence, that he was shocked by being attacked and punched by you when he had done nothing at all to deserve such treatment.
17You are now 33 years old and were 33 years old at the time of your offending. You have no prior convictions. You were born in Iran and are an Ahwazian man, an ethnic minority in Iran.
18You were involved in student politics, and you had views that were contrary to the Iranian government. You were forced to flee Iran in 2010. You went to Indonesia via Dubai and then paid to travel to Australia by boat. Your boat was barely seaworthy and began to sink. The crew and passengers were rescued by the Australian Navy in very traumatic circumstances.
19
You were classed by the Australian government as an 'unauthorised maritime arrival' and detained on Christmas Island, and then at Curtin Detention Centre. You were eventually released into the community where you met and married
Ms Anderson. Your daughter with Ms Anderson was born and Child Protection got involved and you left the family home. You have not had any contact with your daughter since 2018.
20You finished secondary school in Iran and then completed 12 further months of tertiary study. When you arrived in Australia, the border protection regime meant that you were prevented from working. This changed in 2017, when you started working as a security guard and later started a transport business.
21You have abused alcohol from a young age. You stopped drinking for some time but then started drinking heavily when issues arose in relation to your daughter.
22In relation to your mental health, your counsel relies on the report of psychologist, Gina Cidoni, which was tendered on your plea. Ms Cidoni found that you suffered from PTSD, Generalised Anxiety Disorder, Alcohol Use Disorder in enforced remission and that you have borderline and paranoid personality traits.
23It was sensibly not submitted that your mental health issues were causally related to the offending conduct, but it was submitted these problems would make your period of custody more difficult, that if you did not suffer these impediments. It was submitted that limbs 5 and 6 of the well-known case of Verdins[5] were engaged.
[5] R v Verdins [2007] VSCA 62.
24A letter of reference was tendered on your behalf from Ms Busana. She describes meeting you seven years ago as a classmate at Melbourne Polytechnic Epping campus. She describes you as a devoted, compassionate and loving father.
25On your plea, your counsel tendered a letter of advice from Jessica Williamson, an Immigration Lawyer, about your immigration status. In short, Ms Williamson's advice is as follows.
'You are considered an authorised maritime arrival under s5AA(1) of the Migration Act 1958[6]. Because of s46A(1) of the Migration Act, you were barred from applying for a short - for any sort of visa unless the Minister lifts a legislative bar.'
[6] Migration Act 1958 (Cth).
26On 10 September 2015, you were informed that the legislative bar was lifted and you were invited to apply for a Temporary Protection Visa, a TPV or a safe haven enterprise visa, a SHEV.
27On 3 May 2016, you applied for a TPV. On 27 September 2016, you had an interview with a delegate of the Minister and you were found on 17 May 2018 to have a well-founded fear of persecution and were owed protection obligations. You were granted a TPV, which was valid until May 2021. At that time, you were remanded in custody and have not applied for a new TPV. You are currently an unlawful non-citizen. You currently do not have a legal right to apply for none of these in Australia, unless the Minister lifts the s46A legislative bar.
28On 22 August 2022, you made a request to the Minister to lift the legislative bar. Your request to lift the legislative bar is likely to be successful. It is possible that the Minister will grant a TPV or SHEV but this is unlikely because the nature of your offending means that you are unlikely to pass the character test under s501 of the Migration Act.
29Iran will not accept you as an involuntary removal. You are not likely to accept voluntary removal to Iran and you are extremely unlikely to be released into the community. This means that at present you face the prospect of indefinite detention.
30Ms Williamson's letter of advice concludes with the following statement,
'This continues to be an evolving area of immigration law, and there are regular legal challenges to the current scheme of indefinite detention and thus far these legal challenges have been unsuccessful.'
31Mr Backwell who appeared on your behalf conceded that your offending was so serious it could only be properly dealt with by way of a custodial sentence with a non-parole period. He emphasised that you are somewhat isolated in prison.
32You have some siblings who reside in Sydney, but you have little contact with them. A cousin has visited you in custody, but you are unlikely to have visits from family or friends into the future. As previously noted, your mental health issues as detailed in Ms Cidoni's report are also likely to make your period of imprisonment difficult and harsher than if you did not suffer from these conditions. Your period of pre-sentence detention has been in restrictive conditions because of the pandemic and Mr Backwell submitted correctly that the more difficult conditions of imprisonment must be factored into your sentence.
33Further, it was submitted that your prospect of your indefinite detention was analogous to the difficulties faced by those who serve a sentence in circumstances where at the end of the sentence they are likely to be deported. In some ways, your situation is even worse, in that at present there appears to be no clear resolution of how you will be dealt with, other remaining in indefinite immigration detention.
34Mr Backwell suggested that your immigration predicament may have been an important factor for you in deciding to plead not guilty to this offence, and that despite your plea of not guilty I should find that you are somewhat remorseful for your offending.
35
The prosecution conceded that your mental health conditions engage principles
5 and 6 of Verdins. That is that your mental health conditions are likely to be adversely affected by your period of imprisonment, and your experience of imprisonment would be harsher than if you did not suffer from those mental health conditions.
36Mr Davison submitted that the only appropriate sentence was a period of imprisonment with the imposition of a non-parole period. He further submitted that the fact that you were subject to the obligations of a family violence intervention order at the time of the offence was a relevant aggravating factor.
37He clarified that the summary offence of breaching the intervention order was ultimately to be withdrawn in the Magistrates' Court therefore there was no issue you would be doubly punished by me regarding the circumstances of you having obligations under that order as an aggravating factor of this offending.
Consideration
38Neither party referred me to any comparable cases, however, it is clear that your offending is very serious. This was a confrontational aggravated burglary. The maximum penalty of 25 years indicates how seriously the Parliament regards that offence. Your behaviour upon entry to this home was appalling. You terrified the occupants, including your own daughter. You made repeated threats that you were going to kill your partner, you physically banged her head against a wall a number of times inside the house and then chased her with a piece of glass in your hand.
39You used that piece of glass to inflict an injury upon her. Your motivation appeared from your comments to be jealousy. At the time you were under an obligation by virtue of the intervention order not to approach or contact Ms Anderson.
40I accept that you are in an extremely difficult position regarding your immigration status, and this may have been a factor in your decision to plead not guilty. However, you gave sworn evidence before the jury that you were not the person depicted on the CCTV footage lurking outside the premises. You denied that you were the offender.
41You are not to be punished for pleading not guilty, but I am unable to confirm with you any element of remorse, given the course you adopted in the trial.
42I accept that you have previously been a person of good character, and I take account of the letter from Ms Uzeda. I am unable to form any definitive view of your prospects of rehabilitation, given your conduct in the trial.
43I note that the letter from Ms Williamson tendered on your behalf states that in 2018 you were specifically warned by the Department of Home Affairs about the character test, and that if you ever engaged in future conduct that brought you within the scope of the character test, that warning may weigh heavily against you. It is also clear that you had little regard for your obligations under the family violence intervention order. I accept that your period of imprisonment is likely to be harsh because of your mental health conditions and because of the dire situation created by your uncertain immigration status.
44Your uncertain immigration status in my view, entitles you to a significant reduction in sentence. It is akin to, if not worse, the situation than a person facing deportation at the end of their sentence. You simply have no idea as to the circumstances in which your detention will come to an end, and this is likely to be your state of mind during the period of imprisonment. Such uncertainty will no doubt make your period of imprisonment more difficult.
45I also accept that your period of pre-sentence detention of 1,060 days has been more difficult due to the pandemic restrictions imposed in order to combat the spread of the virus. I will take account of those difficulties in ameliorating the length of the imprisonment I impose.
46Although the parties have not referred me to comparable cases, I have examined some cases to try and glean some sort of 'yardstick' in respect of the offences you have committed as well as relevant sentencing principles. I am mindful that other cases are not precedents, that every case is different and that I must have regard to the individual circumstances of your case.
47In Meyers[7], the Court of Appeal referred to the seriousness of aggravated burglaries committed in these types of circumstances. The Court endorsed the following comments in the case of Filiz,[8]
'Of particular significance is the fact that the applicant was already subject to a family violence intervention order. Offending of this nature is too often perpetrated by men whose response to the breakdown of a relationship is one of possessive, violent rage. It goes without saying that such a response, to what is a common human situation, is utterly unacceptable. This court has made it clear that such offending will attract serious consequences and even harsher penalties, where it involves the breach of an order which exists for the victim's protection.'
[7] DPP v Meyers [2014] VSCA 314.
[8] Filiz v The Queen [2014] VSCA 212, [21].
48The court in Meyers went onto state,
'Violence of this kind is alarmingly widespread and extremely harmful. The statistics about the incidence about women being killed or seriously injured by vengeful former partners are truly shocking. Although the cases under consideration do not fall into the worst category, they are symptomatic of what can fairly be described as an epidemic of domestic violence.'[9]
[9] DPP v Meyers [2014] VSCA 314, [45].
49‘General deterrence is accordingly a sentencing principle of great importance in in cases such as these. Those who might, in a mood of anger or frustration or bitterness contemplate this kind of violence entry into the home of a former spouse, or partner, must realise that if they do so, they will almost certainly spend a long time in prison.’[10]
[10] Ibid [46].
50The court in Meyers, then set out some of the factors that might be considered in evaluating the seriousness of a charge of aggravated burglary. The court listed the following factors as relevant:
(a) The offender’s intent at the point of entry (whether to steal or commit assault or cause damage);
(b) The mode of entry (by forcing a door or breaking a window);
(c) Whether the offender was carrying a weapon;
(d) Whether the offender was alone or in company;
(e) The time of day at which the burglary took place;
(f) What the offender knew or believed about who would be inside and/or about where the person(s) would be; and
(g) Whether the offender was someone of whom the victim was particularly frightened.[11]
[11] Ibid [48].
51
You entered alone, you smashed a window with a rock to gain entry through a broken window late in the evening. The CCTV footage shows you hiding outside the house for a time, then peeking in through the window. Upon entry, you immediately commenced to assault those you knew would be inside and
Ms Anderson was someone who was clearly particularly frightened of you. She had taken the precautions of installing the CCTV cameras out of concern for her safety.
52There is clearly an element of pre-meditation in your crime. However, you did not attend armed with any weapon and I am prepared to accept that you had not thought through in advance the detail of exactly what you intended to do by going to the property so late at night.
53You did however linger, and hide outside the property for a time, before you decided to break the window and gain entry into the house. This was not a spontaneous act of rage. You had a chance to reflect upon what you were doing and you chose to break in to the home and assault and threaten those inside. You did this in circumstances where your actions were likely to be witnessed by your young daughter.
54I must be mindful, that the offence of aggravated burglary was complete upon your entry into the premises. The offence of intentionally causing injury to Mr Speziale and Ms Anderson are distinct offences. However, in some respects, these offences are part of the one episode, in the sense of being closely related in time. There will be a period of concurrency imposed for those offences and a period of imprisonment imposed upon the aggravated burglary charge.
55The purposes for which a court may impose sentence are just punishment, deterrence, both specific and general, rehabilitation and denunciation of your actions and protection of the community.
56I just want to go back to the sentence, the offences of intentionally causing injury to Mr Speziale and Ms Anderson are distinct offences, as is the charge of threat to kill.
57The purposes for which a court may impose sentence are just punishment, deterrence, both specific and general, rehabilitation and denunciation of your actions and protection of the community.
58In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, your culpability for it, and your personal circumstances as well as current sentencing practices.
59Balancing these various considerations, and taking account of all relevant matters including the written and oral submissions made on the plea hearing and the exhibits tendered on your plea hearing, I have determined that the appropriate and just sentence is as follows.
60
On Charge 1, of aggravated burglary, you are convicted and sentenced to
four years' eight months' imprisonment. This will be the base sentence.
61On Charge 2, of intentionally causing injury to Ms Anderson, you will be convicted and sentenced to 17 months' imprisonment. I direct that eight months of this sentence is to be served cumulatively on Charge 1 and all other sentences imposed this day.
62On Charge 3, of intentionally causing injury to Mr Speziale, you will be convicted and sentenced to four months’ imprisonment. I declare that three months of this sentence is to be served cumulatively upon Charge 1, and all other sentences imposed this day.
63On Charge 4, of make threat to kill, you are convicted and sentenced to 14 months' imprisonment. I declare that six months of this sentence is to be served cumulatively upon Charge 1 and all other sentences imposed this day.
64That makes a total effective sentence of six years and one month imprisonment. I declare that you serve a minimum of four years and seven months before being eligible for parole.
65Pursuant to s 18(F) of the Sentencing Act,[12] I declare that the period of 1,060 days that you have been in custody be reckoned as time already served under the sentence passed today and I direct that this be entered into the records of the court.
[12] Sentencing Act 1991 (Vic).
66I have been told that in due course there will be a forfeiture application lodged with the court in relation to a watch that was part of the exhibits in this case, or at least referred to during the course of the trial, and that there is no opposition to that application for forfeiture. I indicate that in due course when that forfeiture order is filed with the court, I will make such an order.
67Mr Tiari you heard that, your counsel will in due course speak to you about the consequences of the sentence, there may be other legal matters that might arise. In effect you've been sentenced to six years and one month imprisonment with a minimum period of four years and seven months before being eligible for parole. You'll then have to deal with the immigration situation as to where you go in relation to that.
68Mr Tiari, you need to understand that if you are released back into the Australian community, you now have a very serious criminal history, and you make sure that you comply with the law in the future and try and address your issues, do you understand?
69OFFENDER: Yes.
70HIS HONOUR: Thank you, we'll adjourn the court.
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