Director of Public Prosecutions v WA
[2022] VSC 506
•29 August 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT GEELONG
CRIMINAL DIVISION
S ECR 2021 0178
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WA[1] |
[1]Initials have been used in these sentencing remarks to avoid identification of children in contravention of s 534 of the Children, Youth and Families Act 2005 (Vic).
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JUDGE: | Incerti J |
WHERE HELD: | Geelong |
DATE OF HEARING: | 26 August 2022 |
DATE OF SENTENCE: | 29 August 2022 |
CASE MAY BE CITED AS: | DPP v WA |
MEDIUM NEUTRAL CITATION: | [2022] VSC 506 |
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CRIMINAL LAW – Sentence – Affray – Guilty plea – Offender aged 16 at the time of offending – Affray with multiple participants – WA participated in affray where there was a death as a result of stabbing by unknown offender – In custody for period exceeding likely sentence as a result of other charges – Crimes Act 1958 (Vic), s 195H; Children, Youth and Families Act 2005 (Vic), ss 360, 361, 362, 586; Sentencing Act 1991 (Vic), ss 5, 32 – Sentenced to a youth justice centre order for 2 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P Bourke QC with Mr P Pathmaraj | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Ms S Lacy with Ms D Price | Greg Thomas Barrister & Solicitor |
HER HONOUR:
WA, on 19 July 2022 you pleaded guilty to affray contrary to s 195H of the Crimes Act1958 (Vic) and not guilty to murder contrary to the common law. You subsequently faced trial for the charge of murder and the statutory alternative of manslaughter. A jury found you not guilty of murder and manslaughter on 25 August 2022. It now falls to me to sentence you according to law for the charge of affray.
In the circumstances of this case, the maximum penalty for affray is 5 years imprisonment.[2]
[2] The maximum penalty for affray is 5 years imprisonment or 7 years if, at the time of the offence, the person was wearing a face covering used primarily to conceal the person’s identity or protect them from the effects of a crowd-controlling substance.
You were born in November 2003 and were 16 years old at the time of the offending.
On 23 August 2020 you were at a house in Corio with a number of other young people of African ancestry. During the day, a member of your group, Mr A[3] was communicating with another young man, Mr Sajjad Muradi. The two agreed to a one-on-one fight between Mr A and Mr Muradi’s friend, Mr Seyed Kazem Mousavi. The men agreed to meet at the Corio Village Shopping Centre, and each brought a number of friends. The deceased, Mr Mohammidi, was part of Mr Muradi’s and Mr Mousavi’s group, who were of Afghan ancestry. This senseless arrangement for a one-on-one fight had tragic and devastating consequences.
[3]Note: the suppression order of 13 July 2022 still applies.
The parties disagree about whether there was an expectation or a preparedness by you to engage in a fight if it expanded beyond the planned one-on-one fight. I think it is likely that you were prepared to help Mr A if things got out of control.
Shortly before 7pm the two groups met next to the Corio Village Shopping Centre near the corner of Goulburn Avenue and Purnell Road. Some of your group were armed with knives but there is no evidence you were aware of any weapons.
You approached Mr Mousavi and asked for a cigarette at which point he head-butted you. A brawl then broke out between the two groups.
During the fight, Mr Mohammidi ended up in the carpark next to the Kmart Tyre and Auto Centre. He suffered stab wounds to the right chest, the left armpit, and the left thigh. He also had some minor abrasions. The stab wound to the right side of Mr Mohammidi’s chest caused medical complications resulting in his death.
It is accepted that at least some of Mr Mohammidi’s stab wounds were caused by members of your group while he was in the carpark. It is also accepted that you were seen performing a kicking motion in Mr Mohammidi’s direction while he was on the ground in the carpark, and that you patted him down for cigarettes.
The order in which Mr Mohammidi was assaulted and stabbed, however, is in dispute.
I am satisfied that you kicked Mr Mohammidi while he was on the ground and defenceless. Whether or not you had specific knowledge of injuries already sustained by Mr Mohammidi, one thing is clear: It must have been apparent to you that Mr Mohammidi was not fighting back and completely vulnerable at the time you kicked him. At the very least, you must have suspected that Mr Mohammidi was seriously injured. There are no injuries which have been identified as a result of your kicking Mr Mohammidi.
While you and some members of your group were in the carpark with Mr Mohammidi, a number of Mr Mohammidi’s group and passers-by arrived and attempted to assist Mr Mohammidi. Your group left the scene on foot and you returned with the others to the house in Corio where you had started the night. Along the way, you, and other members of your group, dropped knives and scissors in a drain.
Police and ambulances were called. Mr Mohammidi was taken to Geelong Hospital. He underwent emergency surgery to repair the damage to his chest and heart. He developed raised pressures in his head due to lack of oxygen and was declared brain dead on 25 August 2020. On 29 August 2020, exactly two years ago, Mr Mohammidi passed away.
Children, Youth and Families Act 2005
Due to your age at the time of the offending you should be sentenced in accordance with the Children, Youth and Families Act 2005 (Vic) (‘CYF Act‘), rather than the Sentencing Act 1991 (Vic) (‘Sentencing Act‘). You fall under the definition of a ‘child’ under s 3 of the CYF Act.[4]
[4]Section 3(a) defines child, in the case of a person who is alleged to have committed an offence, as ‘a person who at the time of the alleged commission of the offence was under the age of 18 years but of or above the age of 10 years but does not include any person who is of or above the age of 19 years when a proceeding for the offence is commenced in the Court.’
This is appropriate as, but for the more serious offences for which you were acquitted, a charge of affray for a young offender would commonly be dealt with at the Children’s Court of Victoria.
Section 586(1) of the CYF Act allows the Supreme Court to impose any sentence which the Children’s Court may impose under the CYF Act when sentencing a child. Section 360 of the CYF Act sets out the sentences available. However, if a child is to be detained in a youth residential centre or youth justice centre under a sentence by the Supreme Court, it must be made under s 32 of the Sentencing Act.
The CYF Act applies a different regime than the Sentencing Act. This is in recognition of the different considerations which are relevant to a child offender in comparison to an adult offender.
Section 362(1) sets out the matters that the Court must have regard to, as far as practicable:
(a)the need to strengthen and preserve the relationship between the child and the child's family; and
(b) the desirability of allowing the child to live at home; and
(c) the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance; and
(d) the need to minimise the stigma to the child resulting from a court determination; and
(e) the suitability of the sentence to the child; and
(f) if appropriate, the need to ensure that the child is aware that he or she must bear a responsibility for any action by him or her against the law; and
(g) the need to protect the community, or any person, from the violent or other wrongful acts of the child—
(i) in all cases where the sentence is for a Category A serious youth offence or a Category B serious youth offence; or
(ii) in any other case—if it is appropriate to do so; and
(h)if appropriate, the need to deter the child from committing offences in remand centres, youth residential centres or youth justice centres.
It has been noted by the Court of Appeal in relation to s 362(1) that:
Not only is the language imperative (‘the Court must’) but the words ‘as far as practicable’ operate, in context, as words of emphasis. Since the word ‘practicable’ means ‘feasible’ or ‘able to be done or accomplished,’ the phrase ‘as far as practicable’ means as far as it is possible to go. Hence the sentencing court must have regard to each of the specified matters to the maximum extent possible. And the statutory obligation to ‘have regard to’ a specific matter requires the Court to give the matter weight ‘as a fundamental element in the decision-making process.’ Moreover, as explained below, the specified matters are not matters of fact but statements of policy. They identify the policy objectives which must – to the maximum extent possible – govern the sentencing of young offenders.[5]
[5]CNK v The Queen [2011] VSCA 228, [8].
In sentencing an adult offender, the Court is required to consider the purposes of punishment, deterrence, rehabilitation, denunciation, and community protection.[6]
[6]Section 5(1) of the Sentencing Act.
The prosecution submits that rehabilitation, specific deterrence and community protection are important considerations in this case. The defence submits that the principles under the Sentencing Act are not explicitly mentioned in the CYF Act and should not be applied. It contends that rehabilitation should be the predominant concern.
The purposes under s 5 of the Sentencing Act are not explicitly mentioned in the CYF Act. However, the Court of Appeal has accepted that the Court, in sentencing a child, would be required to consider the gravity of the offence, the remorse of the offender, whether the person pleaded guilty, the offender’s character and antecedents and the impact of the offence on the victim.[7] These considerations, however:
are all directed at an assessment of the particular offending, and of the particular offender, and they inform the determination of a sentence which is properly reflective of all of those features.[8]
[7]CNK v The Queen [2011] VSCA 228, [39].
[8]Ibid. See also Webster (a Pseudonym) v The Queen [2016] VSCA 66, [79].
In CNK v The Queen,[9] the Court of Appeal considered the question of whether general deterrence is applicable when sentencing a child under the CYF Act.
[9][2011] VSCA 228.
The Court found that the language of s 362(1), and the nature of the matters to which regard must be had, ’are such to preclude any consideration of general deterrence.’[10] It recognised that s 362(1)(g), for example, considers protection of the community but from the perspective of what will deter or prevent the child from engaging in ‘violent or other wrongful acts’. While this subsection may include an element of specific deterrence, and s 362(1)(h) refers to specific deterrence while detained, it is not the same consideration of deterrence as would apply to an adult offender.
[10]Ibid [7].
The Court found that the purposes of the CYF Act as set out in ss 361 and 362(1)(d) are ‘wholly inconsistent’ with general deterrence.[11]
[11]Ibid [13]-[14].
In Webster (a Pseudonym) v The Queen, the Court of Appeal noted that ‘the public interest in the rehabilitation of an offender is never greater than in the case of a young offender.’[12] The Court found the ‘primacy of rehabilitation’ in sentencing child offenders is well established in common law and under the CYF Act.[13]
[12]Webster (a Pseudonym) v The Queen [2016] VSCA 66, [6].
[13]Ibid [9].
The Court of Appeal also noted that ‘punitive or retributive considerations which are appropriately applied to adults must be largely set to one side.’[14]
[14]Ibid [7].
Victim Impact Statement
The sentence I am going to impose is not a reflection of the worth or value of Mr Mohammidi’s life. It was an utterly senseless and stupid fight. Instead, the sentence reflects a large number of factors which judges are required by law to consider, one of which is victim impact statements.
At the plea hearing a victim impact statement from Mr Mohammidi’s mother, Ayeh Khanoom Saadat, was read aloud. Ms Khanoom Saadat emphasised Mr Mohammidi’s kindness and generosity describing him as ‘the light of her home.’ Her statement makes clear the devastating impact that Mr Mohammidi’s death has had on her and her family. She said that her pain continues and that she has been suffering from serious psychological and physical problems because of her son’s death and the circumstances of his death.
I note that Ms Khanoom Saadat’s statement refers to all the injuries sustained by Mr Mohammidi, and is not directed just at your involvement. While you are not legally responsible for Mr Mohammidi’s death or other injuries he suffered, your involvement has undoubtedly contributed to the heartbreak and pain suffered by Mr Mohammidi’s family.
Personal circumstances
The Court has received a Pre-Sentence Report from Youth Justice, prepared by Advanced Case Manager Samuel Woollard. Mr Woollard gave evidence at the plea hearing.
You are of Sudanese heritage and were born in Egypt when your parents were on their journey to Australia, fleeing Sudan due to the war. You arrived in Australia when you were one year of age.
You have two brothers and three living sisters. Tragically, in 2013, while you and your siblings were not in your parents’ care, your youngest sister died at nine months of age due to a heart condition. In that same year you lost your mother, who committed suicide in December.
Your home life has been described as chaotic with you and your siblings unsupported and left to look after yourselves. You have been exposed to family violence within the home and have significant trauma related to the loss of your mother and a sister.
During your childhood there was extensive child protection involvement with your family, with protective concerns relating to family violence, inadequate supervision and parental substance abuse. Your father is reported to have consumed alcohol daily and his drinking impacted his ability to respond to you and your siblings’ needs. You often went without food, clean clothes, bathing and medical care. You and your siblings were placed intermittently in kinship placements between 2012 and 2015. Following continued intervention, you and your siblings were reunited and returned to your father’s care. You resided with your father up until your remand commencing on 23 August 2020.
You have prior involvement with Youth Justice, with your criminal history recording that:
(a) on 6 April 2018 you were placed on a Youth Supervision Order for 8 months, without conviction, for offences of theft from shop (shopsteal), commit indictable offence whilst on bail, affray and intentionally cause injury;
(b) on 23 April 2019 you were placed on a Youth Supervision Order for 6 months, without conviction, for offences of recklessly cause injury, theft from shop (shopsteal) and commit indictable offence whilst on bail; and
(c) on 23 January 2020 you were released on a Good Behaviour Bond, without conviction, in relation to an offence of attempted armed robbery.
Mr Woollard’s report refers to your involvement in August 2020 while on remand in nine Category 2 incidents involving physical assaults on young people and staff. You were allegedly involved in an incident on 8 September 2021 which has been referred to Victoria Police for a group assault against staff members and are on summons for this matter.
Prior to your time in remand your engagement with education was described as haphazard and in 2010 you were expelled from one secondary college due to behavioural issues. However, while in custody you have engaged with educational programs completing your senior VCAL certificate, passing your Learner’s assessment, obtaining traffic management qualifications and a white card, and you are currently completing a Certificate II in Sports Nutrition online. You have also successfully completed two alcohol and drug programs and an anger management program.
The Pre-Sentence Report records that while in custody you have consistently engaged with Ms Natalie Harper a clinician with Orygen Youth Mental Health in relation to depressive symptomatology, personality difficulties around anger and your complex trauma history. Ms Harper has advised there are no acute mental health concerns but that you would benefit from ongoing counselling support in the community to address your trauma. Ms Harper has advised that you will be able to contact her for immediate concerns and support upon release and that she will liaise with Youth Justice to source suitable mental health supports.
While there have been a number of incidents whilst you have been on remand, Mr Woollard explained that most of these occurred early in your time in custody and were the result of your adjusting to the environment. They also occurred during the restrictions imposed due to the COVID-19 lockdowns. This meant that there were staff shortages, little access to educational programs and learning and restrictions in the custodial setting. Mr Woollard said there have been no significant incidents in the last eight months and that in the last eight or nine months he has had nothing but positive reports from staff working with you. Mr Woollard told the Court that you have reached a gold standard in the ‘ACE,’ Achieve, Challenge and Encouragement levels, which has allowed you to be placed on specific units where you are allowed certain privileges. You have also been involved in the Umoja African program, a program that encourages leadership among African men and explores cultural histories and backgrounds. Mr Woollard said that your engagement in the Umoja program has been positive and that unofficially you have acted as a positive mentor for some of the younger boys attending the program.
Mr Woollard gave evidence that you have expressed some remorse for what occurred on 23 August 2020, both for the consequences this has had on you and the impact that it has had on everyone involved. Mr Woollard said that you know what it is like to lose a family member and that you are able to empathise with Mr Mohammidi’s family in that sense.
In short, based on Mr Woollard’s evidence and firsthand reports from custodial staff that work with you every day, I can see you have made significant improvements to yourself, your attitudes and behaviour during your time in custody. These gains you have made in your life under exceedingly difficult circumstances are encouraging and demonstrate what you are capable of.
Your father and older brother moved interstate approximately 18 months ago. The Pre-Sentence Report notes that you now have an improved relationship with your father and that, if released from Youth Detention you intend to move to live with him. Your father is reported to be working full-time, and is eager to care for you and able to support you in obtaining employment in the area. The court was informed that your father stopped drinking some time ago and can have you live with him and share a meaningful family relationship.
Matters in mitigation
Deprived background and upbringing
In Bugmy v The Queen, the High Court said:[15]
The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence notwithstanding that the person has a long history of offending.
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision. However, this is not to suggest … that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
[15](2013) 249 CLR 571, 594-5, [43]-[44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
In this case your offending occurred during your childhood, while you were still living in a chaotic and unsupported environment. Your deprived background and upbringing are therefore significant factors in mitigation which I accept ought to lead to a reduction in your moral culpability. While, as the High Court recognised, an inability to control violent responses may increase the need to protect the community, given your youth and the situation you were in at the time of your offending I do not accept that that aspect of the principle is relevant to the present case.
COVID-19 conditions in custody
Your counsel drew attention to the fact that you have been restricted in custody due to the COVID-19 pandemic. The Court of Appeal recently in Worboyes v The Queen said that all things being equal, a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effect.[16] The Court of Appeal noted:
One of the aspirations of encouraging utilitarian pleas of guilty must be that scant resources, upon which there is great demand, will be to an extent freed up.[17]
[16][2021] VSCA 169, [39].
[17]Ibid [38].
I accept that you have had an enormous burden on you in relation to your time in custody as well as the serious nature of the charges which were against you. This is particularly so given your age.
Parity
There were a number of people involved in the affray, some of whom have been sentenced for their participation. I note, however, that the circumstances of the other offenders differ, particularly given the majority were over 18 at the time.
One offender, who gave an undertaking to give evidence for the prosecution, received 262 days imprisonment for pleading guilty to affray and committing an indictable offence on bail. The imprisonment was time served.
Two others pleaded guilty at the Magistrates’ Court to affray and received community corrections orders for six and nine months respectively, without conviction.
Two other offenders have not yet been sentenced.
Sentencing principles
On the nature and seriousness of the offence, it is submitted by the prosecution that the death of Mr Mohammidi, while not the offence you are being sentenced for, must have some impact on your sentence.
The objective gravity of an affray must be informed by a range of factors.
In R v Casley,[18] Croucher J noted:
[I]n my view, great care must be taken in assessing the gravity of any affray, and this affray in particular, by reference to the fact that a person was killed in the course of such an offence. There are several reasons why. First, this Court must be astute to avoid the risk of sentencing Mr Casley for more serious offending for which he is not responsible — namely, causing the death of Mr Smith. Second, the spontaneous behaviour of Mr Ledlin was such a grave escalation of what had gone before that only very limited weight may be afforded to the fact that death was caused in assessing the overall gravity of the affray. Third, while Mr Casley’s subsequent preparedness to kick the defenceless Mr Smith to the head may suggest otherwise, I think that especial care must be taken in sheeting home to him a level of gravity of the affray as measured by the fact that death was caused when it is accepted that he knew nothing of Mr Ledlin’s blow or of the weapon he wielded and was not in any way complicit in that blow. Thus, I have sought to assess the gravity of the affray by taking into account the fact that Mr Smith was killed, but only in the limited way authorised by the authorities in this State, and bearing in mind the points I have just made.[19]
[18][2021] VSC 503.
[19]Ibid [63].
It is accepted by the parties that the affray had profound consequences and you took part in the fighting, though it was not proved that you were armed with a weapon during that fighting. You are not responsible for any of the stab wounds sustained by Mr Mohammidi during the fight. You did not have any part in arranging the fight.
You pleaded guilty to affray at the empanelment of the jury for the trial of that offence and the offence of murder, for which you were acquitted. In addition, in February 2022 you made an offer to plead guilty to affray. This was refused by the prosecution. I accept that your plea of guilty deserves some weight as a factor in mitigation of sentence.
By virtue of the murder charge (for which you were acquitted), you spent much longer in custody than any sentence for affray in these circumstances.
Mr Woollard’s evidence and the Pre-Sentence Report, show that you have matured and have insight into what happened and the terrible consequences not just on yourself but on others. I consider your prospects of rehabilitation are very promising. There is employment available for you working where your father and older brother are currently working.
Sentence
Section 586(1) of the CYF Act allows the Supreme Court to impose any sentence which the Children’s Court may impose under the CYF Act when sentencing a child. If that sentence involves detention in a youth residential centre or youth justice centre, it must be made under s 32 of the Sentencing Act.
Under s 361 of the CYF Act:
The Court must not impose a sentence referred to in any of the paragraphs of section 360(1) unless it is satisfied that it is not appropriate to impose a sentence referred to in any preceding paragraph of that section.
The sentences in s 360(1) of the CYF Act range from dismissing the charge without conviction to convicting the child and ordering they be detained in a youth justice centre.
The submissions on your behalf were that in the circumstances of this case, the appropriate disposition is detention with a conviction and that any detention should be ‘very brief’ and served by way of pre-sentence detention.
A particular difficulty in the circumstances of this case is the long-time already spent in custody due to the charge for which you were found not guilty. But for the more serious charge of murder, you would not have spent as long in custody as you have.
WA, I sentence you to 2 months in a youth justice centre as time already served.
Pursuant to s 362A of the CYF Act, I am required to state the sentence I would have imposed but for your plea of guilty. If you had not pleaded guilty, I would have sentenced you to 3 months in a youth justice centre, as time already served.
Further, I declare that the period to be reckoned as already served under this sentence is 736 days, not including today’s date. I direct that there be noted in the records of the Court the fact that such declaration was made and its details.
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