Director of Public Prosecutions v Waheed (a pseudonym)
[2016] VCC 1165
•15 August 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication with pseudonyms |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BULUS WAHEED (a pseudonym) |
---
| JUDGE: | HER HONOUR JUDGE WILMOTH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 28 July 2016 |
| DATE OF SENTENCE: | 15 August 2016 |
| CASE MAY BE CITED AS: | DPP v Waheed (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1165 |
REASONS FOR SENTENCE
---
Subject: Criminal law - sentence
Catchwords: Plea of guilty to one charge of recklessly causing serious injury – victim was infant son of accused – retinal and subdural haemorrhages and bruising – no apparent residual injuries – accused subject of family violence intervention order at the time – limited insight into offending but indications of rehabilitation - ongoing counselling for PTSD and parenting responsibilities – regular contact with children subject to Children’s Court orders – general and specific deterrence both important.
Sentence: 6 months’ imprisonment with 2 year CCO.
NB: Pseudonyms have been used in these remarks to protect the identity of the family of the offender.
---
APPEARANCES: | Counsel | Solicitors |
For the DPP | Mr A Tinney SC | OPP |
For the Offender | Mr C. Edwards | James Dowsley & Associates |
HER HONOUR:
1Bulus Waheed[1], you have pleaded guilty to one charge of recklessly causing serious injury. The victim was your infant son Taalim[2], then aged four months.
[1] pseudonym
[2] pseudonym
2Mr Waheed, I will be sentencing you to serve a six-month term of imprisonment to be followed by a Community Correction Order for two years for the reasons which I will now explain.
3You are now aged 41. You and your wife Adawiyah[3] and your daughter had come to Australia from Pakistan as refugees in October 2012. You were both born in Pakistan of Afghan parents who were of Hazara ethnicity. Your families were Shia Muslims and experienced persecution in Pakistan as the situation there deteriorated.
[3] pseudonym
4The first child born to you and your wife was born prematurely and sadly died after a few days. The second child was your daughter who is now aged seven. Taalim was born on 28 September 2013, one of twin boys who were born prematurely at 31 weeks' gestation. The other twin, Gahez, had a cleft palate which required treatment and he remained in hospital for about a year.
5Taalim was healthy after some initial complications and after two months he went home to join the family. Your daughter was then aged four and a half. The family visited Gahez in hospital every second day. There were tensions in your marriage and between September and December 2013, you were verbally aggressive towards your wife and children. Your wife was scared of you and was often threatened by you that if she did not do what you wanted, you would hurt her.
6On 26 December 2013, you threatened her in this way and she ran from home with her daughter to the closest police station. She made a complaint to the police including previous threats by you to kill her and the children. An intervention order was obtained and you were prohibited from being at the house where your wife and children were living and from being within 5 metres of them.
7You went to live in a share house with men you had met on the boat coming to Australia. You were very depressed and upset and you drank heavily. Between January and February 2014, you begged your wife to allow you to return home promising your behaviour would improve and you would be good to her and help with the children. Your wife felt under pressure, being new to Australia, subject to cultural pressures and fearing living alone, and eventually she acquiesced. She told the police that her complaint was not true and she withdrew it but the intervention order remained in place.
8You began to visit the house and spent the day there on 10 February 2016. Your wife was informed by staff at the Monash Medical Centre that the other twin Gahez was to have surgery that day and she would need to be there. She arranged for her daughter to go to family day care but she had no one to care for Taalim. You were at the house at the time and told your wife you had changed and could look after the baby. She believed you and left Taalim in your care. At that time, the baby was in good health and according to her, did not have any injuries.
9You cared for the baby from early that morning and then at about 2.20 pm, child protection workers came to your wife's house in relation to what is called a compliance check prompted by your wife's presence at the hospital without Taalim. The protection workers knocked on the door and there was no response. The fly screen door was locked but the front door was ajar and they could see a baby's bassinet in the house. They continued knocking and it remained unanswered.
10One of the workers then noticed the bassinet move and could hear a baby cry, whereupon the workers called the police. Police attended at 2.40 pm and knocked on the door to no response. After several attempts to raise you, Senior Constable Truter found the key to the screen door on the other side of the lock and reached through to obtain the key and unlock the door.
11She found you in the bedroom with Taalim, who was crying. You were not supporting Taalim's head and you were handling him quite vigorously, shaking him. You refused Senior Constable Truter's request to hand the baby to her and continued to shake him. She led you with the baby to the front of the house where police asked you to hand over the baby, which you did after several requests.
12Later, your explanation was that you were shaking the baby to try to calm him and stop him crying, which seems not to fully explain the injuries and therefore it is at odds with your plea of guilty to having inflicted injuries greater than would be expected from the handling of the baby observed by the police.
13In the following hours, the baby was observed to be not settling and unable to take a bottle. He was then found to have bruising on his body and he was taken to Monash Medical Centre that evening for a forensic medical examination. He was found to have significant retinal haemorrhages, subdural and subarachnoid haemorrhages and extensive bruising. The haemorrhages raised significant concern that they had occurred as a result of shaking and as to the possibility of brain injury having been inflicted.
14Medical opinion was that the severe haemorrhages indicated the use of significant force and the potential to be life-threatening. There is no medical material indicating that any permanent injury has transpired from the haemorrhages and no up-to-date information as to the baby's recovery save that he is living with his mother and that you have regular visits with him and the other children.
15You yourself have reported that Taalim seems developmentally normal in contrast to Gahez who is developmentally delayed - he is small and does not speak. The bruising was considered by the forensic paediatrician who examined the baby as strongly suggestive of having resulted from a non-accidental traumatic blunt force and the context of these being inflicted is not known. The description of the bruising in the prosecution summary appears as follows:
‘‘Dr Geetika Badkar, Victorian Forensic Paediatric Medical Service Fellow saw Taalim at Monash Medical Centre on 12th February 2014 between 10.30am and 11 am. Dr Badkar found Taalim to have bruising to his abdomen and back and documented these injuries as follows –
Lower chest and abdomen
Injury 1- On the right anterior lower chest there was a 4cm x 2cm irregularly shaped bruise, light yellow in colour.
Injury 2- On the right antero-lateral abdomen, there was a 4 cm x 1.2 cm irregularly shaped bruise, light yellow in colour.
Injury 3 – On the right anterior lower abdomen, there was a 3cm x 3cm area of purple petechial bruising.
Injury 4 – On the right antero-lateral abdomen, there was an area of scattered petechiae in a linear distribution measuring 1 cm in length, This was lateral to injury 3.
Injury 5 – On the right antero-lateral lower chest, there was an area of less than ten scattered petechiae.
Injury 6 – On the left anterior lower chest there was a 0.5cm x 0.3cm irregularly shaped bruise, light yellow in colour.
Injury 7 – On the left antero-lateral lower chest, there was a 1cm x 0.6cm irregularly shaped bruise, light yellow in colour. This was lateral to injury 6.
Injury 8 – On the left anterior lower chest, there was a 1cm x 0.5cm area of purple petechial bruising. This was below injury 6.
Injury 9 – On the left antero-lateral lower chest, there was a 0.6cm x 0.3cm area of purple petechial bruising. This was lateral to injury 9.
Injury 10 – On the left antero-lateral lower chest, there was a 0.3cm x 0.7cm area of purple petechial bruising. This was lateral to injury 9.
Injury 11 – On the left anterior abdomen, there was a 0.7cm x 0.4cm irregularly shaped bruise, red in colour.
Injury 12 – On the left antero-lateral abdomen, there was a 0.6cm x 0.3cm irregularly shaped bruise, red in colour. This was lateral to in injury 11.
Injury 13 – On the left antero-lateral abdomen, there was a small petechiae measuring <0.5cm. This was lateral to injury 12.
Injury 14 – On the left anterior abdomen there was a 1.5cm x 0.7cm area of yellow-brown discolouration with scattered petechiae. This was consistent with a bruise.
Back
Injury 15 – On the right lower back just above the buttock, there was a 2.5cm x 1.5cm irregularly shaped bruise, red-purple in colour.
Injury 16 – On the right lower back, there was a 2.5cm x 1cm irregularly shaped bruise, green brown in colour. This was above injury 15.
Injury 17 – On the right lower back there were two linear bruises. They were adjacent to each other in an upside down ‘L’ shaped pattern. The vertically orientated bruise measured 1.2cm in length and was red in colour. The slightly angled horizontally angled bruise measured 2cm in length and was red in colour. They were medial to injury 15 and 16.
Injury 18 – On the right lower back, there was an area measuring 2cm x 0.7cm of scattered petechiae. This was lateral to injury 15 and 16.
Upper Limbs
Injury 19 – On the right posterior lateral upper arm, there was a 0.5cm x 0.5cm circular bruise, red in colour with central petechaie.
Injury 20 – On the right inner upper arm, there was a scratch ,measuring less than 0.5cm”.
16You were arrested on 14 February 2016 and you made a no comment record of interview. You returned to the share house where you had been living earlier but later in the year you found other accommodation where you still live. As a result of the intervention by the Department of Human Services, you were only permitted to see the children when supervised and your interaction with them was under observation.
17A forensic psychologist report was obtained from Mr Guy Coffey who assessed you over the course of three interviews in May, June and July this year with the assistance of an interpreter when needed. Mr Coffey stated that you undertook a number of courses as a result of a court order, which I assume is a reference to the proceedings in the Children's Court, as it appears Taalim is still subject to orders of that court. These courses dealt with anger management, behavioural change regarding respect towards women, parenting skills and relationship counselling. Later you and your wife together attended counselling sessions, dealing with exposure to trauma in Pakistan and parenting responsibilities.
18In response to the charge against you and by way of explanation, you conceded that you knew the children were not to be left in your care, but you decided this was too difficult to maintain because of your wife's need to attend appointments. This is why you were left with Taalim on the day of the offence. You told Mr Coffey that at that time you had felt socially isolated, angry and demoralised, and disempowered by not being able to provide for your family. There was conflict in your marriage owing to the stress of a difficult pregnancy and the post-birth medical condition of the babies, and the fact that your wife was sending money to her family in Pakistan. There was no family support for you and your wife at this difficult time and you took on nearly all the domestic tasks.
19As to employment, when you arrived in Australia as a refugee in October 2012, you had no work rights until you gained permanent residency in April 2013. You looked for work but found none apart from a couple of days spent loading a truck. The inability to work contributed to your frustration, causing you to be irritable and verbally aggressive towards your wife.
20During 2015, you found some temporary work which seemed to contribute to an improvement in your wellbeing. You have continued to look for work but have also been spending time attending fortnightly counselling and seeing the children regularly. Mr Coffey assessed the risk of your reoffending as being low but he noted some limitations on your appreciation of the harmfulness of your actions towards the baby and a deflection of responsibility, blaming the arrival of the Department of Human Services workers at your house as the cause of your panic.
21You said you shook the baby to calm him and he would not have been harmed if the workers had not arrived. I made reference to this explanation of yours which is inconsistent with the injuries earlier in these remarks. It is of further concern that an intervention order was in place because of your threats of violence towards your family and at the time of the making of that order in December 2013, bruising had been noticed on the baby after he had been left briefly in your care.
22That said, Mr Coffey considered that you have made very considerable progress in your rehabilitation and that the good reports from the Department of Human Services based on direct observations of you with your children is the best indicator of that progress. Mr Coffey stated that you do not suffer from any mental illness or personality disorder which might predispose you to offending and that you appear to have made progress in understanding and managing emotions which led to your grievous loss of control in hurting Taalim. Added to that, you have no prior convictions.
23Despite the low risk, Mr Coffey thinks that if in future your responsibilities for the children expand to shared custody arrangements, additional psychological counselling and support should be made available to you. These considerations amount to persuasive reasons for an optimistic view of your prospects of rehabilitation. Another mitigating factor is your plea of guilty entered at a relatively early time, and important for having saved your wife the trauma of having to give evidence at the committal and a trial. That entitles you to a discount on your sentence.
24The nature of the offence means that the need for general deterrence is of great importance in this case. It is a very serious offence attracting a maximum penalty of 15 years' imprisonment. Where a crime represents a serious violation of a community's expectation that vulnerable infants should be protected from harm, the penalty imposed must reflect that concern by way of stern denunciation by the court. At the same time, the penalty must not ignore the particular circumstances of the case and of the perpetrator. That is why a custodial sentence is necessary in this case to be combined with a Community Correction Order. Together, those penalties take account of the need for both general and specific deterrence to an appropriate extent.
25A copy of the very recent Sentencing Snapshot for recklessly causing serious injury was handed up to me, but given its broad representation of sentences, it is not very helpful in this case.
26You were assessed as unsuitable for a Community Correction Order because you did not consent although I understand that you do now consent. Your reluctance was prompted by the fact that you have already completed some courses pursuant to orders of the Children's Court and you are already engaged in counselling. You also feared that having to perform unpaid community work would interfere with your efforts to look for work and with your contact with your children. Clearly you place importance on the positive steps you have taken.
27Unfortunately, the prison sentence which I must impose will bring all that to a halt for the time being. Once you are released, the obligations under the Community Correction Order will provide a structure for monitoring your continued progress in rehabilitation which will become the primary focus of the sentence although the obligations have a punitive element as well insofar as they will intrude upon your liberty. The order will not prevent you from continuing to see your children.
28Would you stand now please, Mr Waheed.
29Taking all those matters into account, I consider it appropriate to combine a sentence of imprisonment with a Community Correction Order. I sentence you to six months' imprisonment to be followed by the Community Correction Order which will last for two years from the date of your release.
30You will be under supervision and you must be assessed for any necessary mental health treatment. You must take part in any programs considered suitable to reduce the risk of reoffending. It is not necessary that you perform unpaid community work as the focus of the order will be supervision and suitable programs.
31If you had pleaded not guilty to this charge, I would have sentenced you to nine months' imprisonment with a three-year Community Correction Order.
32The prosecution seeks an order for a forensic sample of saliva to be obtained which is not opposed. I make that order and must advise you that the police have the power to use reasonable force to obtain the sample but I trust that will not be necessary.
33Are there any other matters, Mr Edwards?
34MR EDWARDS: No, Your Honour.
35HER HONOUR: All right. Mr Tinney?
36MR TINNEY: No, Your Honour.
37Your Honour, there had been some communication from Your Honour's associate about a charge for unlawful assault which had been laid in the alternative.
38HER HONOUR: Yes.
39MR TINNEY: My present instructor was not my instructor previously and I haven’t had any discussions about that but the appropriate notice would be filed in due course in respect of that.
40HER HONOUR: Very well, thank you, thanks for that. Mr Edwards, the only question I have for you is whether there may be any custody management issues that come to mind?
41MR EDWARDS: I'd ask that Your Honour annotate the warrant that it is the first time he has been held in custody and perhaps maybe that if he can be seen by a forensic medical officer upon his receipt in custody. He was quite upset after the last hearing that led to some concerns between myself and Mr Barnes but they stabilised, but out of an abundance of caution perhaps if that could occur upon his receipt particularly to - I would imagine he'd go to the MAP for observation.
42HER HONOUR: I'll have that note made.
43MR EDWARDS: Thank you.
44(Community Correction Order signed and acknowledged.)
45MR TINNEY: Your Honour, I'm just having a look at s.95 of the Sentencing Act which is the section that requires the court , if it “proposes to make an order which has attached to it conditions to which a person is required to consent’ - and I suppose that's the case with any Community Correction Order - he needs to consent before it can be made.
46HER HONOUR: Yes.
47MR TINNEY: “The court is required before making the order to explain or cause to be explained to the person in language likely to be readily understood by him or her the purpose and effect of the proposed order, the consequences that may follow if he or she fails without reasonable excuse to comply with the proposed order and the manner in which the proposed order may be varied”.
48I was just not sure, Your Honour, whether your remarks have gone as far as making clear those matters. I'm not certain what the practice is.
49HER HONOUR: It doesn't usually arise because there's usually unequivocal consent.
50MR TINNEY: Yes.
51HER HONOUR: But what I might do is I'll ask Mr Edwards what the state of play is at the moment with his client and if he needs more time, I'll give him that and then I'll take up your suggestion.
52MR TINNEY: Yes, Your Honour. I'm sure there's no - it's a technical requirement - but simply that it does need to be spelled out to someone consenting to such an order that if he doesn't comply with the order, that there are consequences that flow from that, I think that's the most important aspect of it.
53HER HONOUR: All right, thanks Mr Tinney. Mr Edwards?
54MR EDWARDS: I've explained it, it's been explained to Mr Waheed both by myself and Mr Barnes outside of court. Perhaps if Your Honour now that sentence has been passed, if Your Honour were minded to leave the Bench for five minutes so I can discuss it with him in the context of knowing now what the full sentence is.
55HER HONOUR: Certainly. I can do that.
56MR EDWARDS: Thank you.
57(Short adjournment.)
58MR EDWARDS: Thank you for that opportunity, Your Honour. I've taken Mr Waheed through the order and he has signed it indicating his consent.
59HER HONOUR: Yes.
60MR EDWARDS: I've got another matter over the road but then I undertake to come back this afternoon and take him through that sentence.
61HER HONOUR: All right, very well.
62MR EDWARDS: There's one issue that did come to mind when speaking to Mr Waheed and - that perhaps if there's a custody management issue, Your Honour notes that there will be a language issue with communication.
63HER HONOUR: I'll add that as well.
64MR EDWARDS: Thank you.
65HER HONOUR: Perhaps before you leave court, you could obtain the sentencing remarks from Mr Interpreter so you can use those later.
66MR EDWARDS: Yes, I'll certainly do so. Thank you, Your Honour.
67HER HONOUR: Mr Interpreter, would you just explain please to Mr Waheed that when he's released from prison, he has to go to the Corrections office at Dandenong which is 46-50 Walker Street within two days of his release from prison. The purpose of the order, as I said in the remarks, is to provide some structure, to monitor his rehabilitation and even if he has already done quite a lot of counselling and other programs, the Corrections people will make sure that if he does need some more counselling or other programs that he will be able to go to those.
68If he doesn't do all the things that he's obliged to do under that order, he will be charged with breaching the order and he will have to come back to court to be re-sentenced. He will already have served a six-month sentence and he will know that it's possible that there could be a further term of imprisonment imposed if he does not complete the Correction Order properly.
69I note that he has consented, and I will now sign it as well. Mr Edwards is going to see you later on, Mr Waheed, and he will answer any questions you have I'm sure and give you any further explanation that you might need.
70Anything else, Mr Edwards?
71MR EDWARDS: No, Your Honour.
72HER HONOUR: Mr Tinney?
73MR TINNEY: No, Your Honour.
74HER HONOUR: Right. Thank you, adjourn the court please.
‑ ‑ ‑
ww
0
0
0