Director of Public Prosecutions v Xaashi

[2021] VCC 1593

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-01643

DIRECTOR OF PUBLIC PROSECUTIONS

v

CANAB XAASHI

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	20 October 2021
CASE MAY BE CITED AS:	DPP v Xaashi
MEDIUM NEUTRAL CITATION:	[2021] VCC 1593

REASONS FOR SENTENCE

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Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Malik
For the Accused	Mr K. A. Boden

HER HONOUR:

1Canab Xaashi, you have pleaded before me to one charge of recklessly causing serious injury.  The facts underlying your offending are as follows.

2At the time of this offending, you were aged 23 and the victim in this matter was a woman who had formerly been your friend, Kandra Mohamed.  She was 31 years old at the time of the offending.  You and Ms Mohamed were sharing a house together in Seaby Street, Stawell.  You had been sharing together there for several years.

3On 14 December 2020, there was a disagreement between you and Ms Mohamed about using Ms Mohamed's lunchbox without permission.  There had been a number of minor disagreements leading up to the day on which the offending occurred.

4On 16 December, you and Ms Mohamed were at home with a third person, Isi Yazlam, who had moved into the house and another resident of the house was Mr Yazlam's teenage nephew, Abdi Abas.  On the afternoon of 16 December, Ms Mohamed went to do some washing in the laundry and saw that some of her clothes had been moved into a plastic bin which was used by the household to mix orange juice and as a result orange juice had got onto Ms Mohamed's clothing.

5Ms Mohamed told Mr Yazlam she believed you had moved her clothing and asked him to speak to you about the rubbish bin.  He spoke to you and you said you had moved the clothing.  Ms Mohamed then spoke to you and suggested household items should stop being shared to prevent arguments happening in the future and Mr Yazlam took the bin outside and put it in a rubbish tin.

6You and Mr Yazlam then went to the supermarket returning about 20 minutes later and soon after you went into the backyard and brought the plastic bin back inside and that's started another argument between you and Ms Mohamed.  You apparently called Ms Mohamed insulting names and Mr Yazlam intervened and told you that the household agreed that the bin should remain outside and would not be used in the house.

7You told Mr Yazlam you did not care and then said to Ms Mohamed that the plastic bin was in your bedroom and that if she tried to come into your room and pick it up again, she would go to hospital and you repeated that phrase, 'Go to hospital', a number of times.

8Ms Mohamed laughed at you and you slapped her across the face and she slapped you back and the two of you began pulling each other's' hair.  You put your fingers in Ms Mohamed's mouth and she bit your finger.  By this stage, Abdi Abas had come home with two other friends and at this time, Mr Yazlam separated you and Ms Mohamed with the assistance of Mr Abas and his friends.

9Ms Mohamed and Mr Yazlam talked for about 10 minutes in Ms Mohamed's bedroom before moving to the loungeroom and Ms Mohamed then went to your bedroom to get some of her belongings.  As a result, you and she began physically fighting again.

10You then went to the kitchen and took a large kitchen knife which was about 32 centimetres long with a 20-centimetre-long blade.  You walked into the loungeroom concealing the knife in your headscarf and began to approach Ms Mohamed.  Apparently when you were about 1 or 2 metres from Ms Mohamed, you produced the knife and started waving it around and Mr Yazlam grabbed your arm to stop you.  He was unable to take the knife away from you and you then lunged at her with the knife pointing it at her stomach.

11Ms Mohamed stepped backwards in the direction of her bedroom to get away but the door was closed. She had her back to the loungeroom wall and she told police you again lunged at her with the knife at her stomach and she put her hands in front of her stomach to protect herself and grabbed the knife blade.

12You apparently moved the knife backwards and forwards a few times before pulling it away which caused a deep laceration to Ms Mohamed's thumb.  This began to bleed profusely.  You told Ms Mohamed that she deserved that.

13Then police were called and Mr Yazlam took the knife from you and put it on the couch and went to a neighbour for help.  You apparently continued to insult Ms Mohamed whilst Mr Yazlam was gone.

14You then rang the father of one of Mr Abas' friends and told him you had had a fight with the victim, that you had stabbed her in the hand and asked this man, Abdi Mohamed, to come to the property quickly, which he did.

15Police then attended arriving at about 6.10 pm and the knife was found on a shelf next to a laptop in a bedroom of the house.  You were placed under arrest and taken to the Stawell police station where two interviews were conducted, the first being suspended to allow you to speak to a family member.  Eventually there was a third interview in the early hours of the morning of 17 December where you gave no comment answers.

16The victim, Ms Mohamed, was taken to the Geelong Hospital where it was discovered there was a large six-centimetre linear wound to the palm of her
left-hand thumb area and she underwent plastic surgery during which muscles and nerves were repaired and the wound was sutured.  She was discharged later that morning with her hand in a splint which she had to wear for four weeks and she was also advised not to work for six weeks.  She received follow-up hand therapy after this.

17According to Dr Angela Williams, a forensic physician, the underlying muscles and a nerve affecting sensation were affected and movement was impaired as a result of the injury.  Her opinion was that without surgical repair, there would have been difficulty with healing, permanent loss of flexion and nerve damage.  Dr Williams believed it was possible there could be full recovery but it was also possible there could be permanent changes to Ms Mohamed's range of movement and she was likely to have permanent scarring of the thumb and palm area.

18You were granted bail during 17 December after spending the night in prison.

19The matter was listed for committal but resolved before this and you pleaded guilty and then were committed for plea in the Ballarat Magistrates' Court which took place on 18 October 2021.

20In her victim impact statement, Ms Mohamed said that she had been shocked and scared by the attack, that she felt very alone afterwards, cried a lot and had to stay with a Somali friend in Melbourne for four months whilst her wound healed.  She said she still does not have any feeling in her thumb.  I note that the victim impact statement was made on 21 September this year. Her doctor told her it could possibly come back.  She said that she had pain in her left arm and that she had big social problems and she was always looking around her because of fear.

21I now turn to your personal circumstances.  You are 24 years of age.  You have had a difficult life.  You were born in Somalia and you emigrated to Australia in 2017 on an orphan relative visa sponsored by your older sister.  Your parents died when you were young, you never met your father and your mother died in a suicide bomb attack.  You were forced to marry when you were 14 and your husband was physically abusive towards you.

22You have two children who are now six and seven.  Their father was killed in 2017 and remained with their paternal grandfather.  You escaped from that home.  You were treated very badly there and you escaped when you were allowed out one day to do the shopping.  You fled to Kenya where you lived for two years in a refugee camp.  You have no formal educations and no formal qualifications as you were not allowed to attend school and were unable to study.

23After you arrived in Australia, you shared accommodation with two other Somali women.  You began living in Melbourne but were unable to find work and eventually moved to Stawell where you obtained work in an abattoir.  It was at this time you began sharing accommodation with the victim, Ms Mohamed.

24You did not have any problems with Ms Mohamed and indeed the two of you were friends and I heard evidence on the plea from Sarah Malid Ali who also lived in the house with you but who left that house to take up accommodation and work elsewhere.

25Ms Ali said there had never been any problems in the house whilst she lived there and that you and Ms Mohamed were friends and lived together peacefully.

26In about June 2020, Ms Ali moved out and a friend of Ms Mohamed, Mr Yazlam, moved into the house with you.  This was apparently when the trouble started.  Apparently, Mr Yazlam harassed you and regularly asked you to marry him even though you made it clear you were not interested.  This caused a rift between you and Ms Mohamed.  According to what you have told your counsel, Ms Mohamed and Mr Yazlam began doing things in the house to upset you including destroying property which belonged to you, they made you feel that they were laughing at you and they ridiculed you calling you fat and ugly.  It was in this context that the attack on Ms Mohamed occurred.

27I also received a report from psychologist, Jeffrey Cummins, dated 12 October 2021.  You told Mr Cummins about the issues you had had with Mr Yazlam, that when you refused him, he and Ms Mohamed would call you ugly and fat, pick on your appearance and bullied you.  There were arguments about the bills and you said on the day of the incident there was more to the argument than appeared in the prosecution summary.

28You said to Mr Cummins that on the day of the incident, there was an argument over the washing basket which was shared between you and Ms Mohamed.  You said that Mr Yazlam asked you to come out of your room because he wanted you to call someone and you told Mr Cummins,

'At that point, I felt frightened because I thought he wanted me to come out of the room so they could yell or assault me.'

29Then Mr Yazlam said that Ms Mohamed wanted to talk to you. You had a shower and when you were getting changed, Ms Mohamed came into the room and ultimately threw a hot heater at your chest.  You said that a fight broke out between you and Ms Mohamed, that during that fight Mr Yazlam held you back and that you had taken the knife because you thought Ms Mohamed was going to grab it.

30I accept, however, of course that even though I am describing your version of events, you have pleaded guilty to the charge but you said that when you grabbed the knife, Ms Mohamed also grabbed at it and that it was during this struggle (apparently you got the knife first) she grabbed at it taking hold of the blade and that is when the injury occurred.

31You moved out of the house on that very day and have not returned since or had contact with Ms Mohamed ever since.

32You told Mr Cummins (and it is accepted in the plea to a charge of recklessly causing injury) that you did not intend to stab Ms Mohamed in the stomach but do admit that she suffered serious injuries when she tried to take the knife from you by grabbing the blade.

33Your life in Australia has been marked by hard work.  You now live in Point Cook with another sister and you work at two abattoirs and you work extremely hard.  I heard evidence from your sister, Iqran Xaashi, that your particular concern is that your children have remained with their paternal grandfather.  He contacts you on a regular basis for money.  You believe that your daughter is being sexually assaulted by her grandfather and at the present time, you do not know where your son is as he has run away from home.

34The evidence from your sister was that you are concerned that if you do not continue to send money, which you often send at the rate of about $1,000 a month, your daughter will suffer.  You are desperate to get your children to Australia.

35Your sister also gave evidence about the way in which you left Somalia, that you were very much confined to the house, even after your husband's death, you were not allowed to go out, you were treated very badly and escaped on a day in a rare occurrence you were allowed to go shopping.

36I accept that you had an extremely difficult life in Somalia.  I accept that since coming to Australia, you have been a hardworking and responsible person but a person who has suffered very greatly because of your fears for your children.

37You have no prior convictions.  This is the first time you have ever been in trouble.

38I accept that this offending is very much out of character for you and that it arose in the context of a fight with a housemate with whom you had lived peacefully for several years but that relationship with your housemate was disrupted by the arrival of Mr Yazlam and his intentions towards you and your rejection of those attentions.

39You have also, since this offending, taken steps to attend to your mental state.  You have begun treatment with a psychologist through your local GP.  You have the support of the Somali Australian Community and you are a member of the East African Women's Foundation and have received assistance from them.

40Mr Cummins noted that you were very remorseful for your offending and I accept that you are remorseful and that this was also indicated by your very early plea of guilty to this charge.  It was Mr Cummins' opinion that your risk of committing a further offence of violence is low.  He noted that you work at two abattoirs; indeed your sister gave evidence that you work constant shifts between the two abattoirs often only having a few hours in between because of your anxiety about sending money to support your children.

41You are also now medicated on an antidepressant.  You are receiving counselling through Foundation House.  Mr Cummins believed that you need to continue having mental health treatment.  He believed you were showing signs of anxiety and depression.

42I also received a report from Sofia Riverall who is a counsellor advocate at Foundation House.  In her report dated 20 September 2021, she notes that she began working with you in June 2021 when you were referred for counselling in relation to depression and that you have been meeting her on a weekly or fortnightly basis since.  She described you as an active participant in the appointments.

43She stated,

'Canab has a complex trauma history including forced marriage and family violence and struggles with loss and grief, sleep disturbance, stress, excessive worry, concentration and memory, self-isolation, psychosomatic pains and emotion regulation.  She struggles with the uncertainty that comes from being separated from her children and not knowing if she will see them again.'

44She said you had agreed to continue to engage in counselling with them.

45I also received a report from Claudina Garcia, a psychologist director of Psychologists' Corner.  She also said that you presented with symptoms of anxiety, depression, trauma and stress 'in the context of experienced grief and loss and abuse'.  I should note that the description that you gave Ms Riverall when you have been seeing there of your life with your husband's family was staying at home, doing house chores and generally I accept that you had a difficult, oppressed and abusive life in Somalia.

46You have also reported having nightmare flashbacks about the incident.  Again, you told Ms Garcia that you worry all the time about your children,

'And all she wants is to focus on working and finding a way to bring her children to safety.'

47You have also been in contact with the Red Cross operating in Somalia to assist with finding your son.

48Ms Garcia said you had a good level of insight about your issues.  She said you did not present as aggressive or intrusive.

49Finally, I received letters from the East African Women's Foundation and the Somali Australian Council of Victoria.  They both described you as being extremely remorseful and upset about your behaviour in this way.  The chairperson of the East African Women's Foundation, Fartun Farah, said her organisation would continue to support you.  Dr Hassan Horaiko, the Secretary of the Somali Australian Council of Victoria, noted that you do a lot of volunteering work for the community despite your busy work schedule and it appears you also get support from that organisation.

50The prosecution submitted that I should deal with you by way of a combination sentence involving both gaol and a community corrections order.  I do not accept that it is necessary that I should gaol you in relation to this offending.

51First, you have pleaded guilty at the earliest stage.  I accept that you are remorseful for your offending.  I accept it is out of character given your lack of prior criminal history.  I have also had numerous pieces of evidence from people who know and support you including Mr Cummins referring to your extreme remorse and disappointment about your behaviour that day.

52Secondly, I accept you are not a danger to the community.  Mr Cummins assessed you as being a low risk of reoffending as did the community corrections officer who assessed you for suitability for placement on a community corrections order.  I do not regard specific deterrence or protection of the community as being principles to which I must have regard in sentencing you in relation to this matter.

53Thirdly, insofar as the injury you inflicted on Ms Mohamed is concerned, I regard that injury as being at the lower end of the scale applicable to injuries of this kind. I note that the definition of serious injury pursuant to s15 of the Crimes Act, means,

'(a), an injury that either endangers life or is substantial and protracted.'

54In my view, the injury that you inflicted upon Ms Mohamed on that day falls at the lower end of the scale, as I have said, of injuries which fall into the serious injury category.

55It is my view that a community corrections order properly addresses the issue of general deterrence in the way outlined by the Court of Appeal in Boulton.  It is my view that this was offending which occurred in a particular set of circumstances.

56I accept the evidence of your former housemate, Ms Ali, that up until the arrival of Mr Yazlam at the house, you and the victim, Ms Mohamed, had lived together amicably and peacefully and I also accept that you had been subject to an amount of bullying and harassment by Mr Yazlam and Ms Mohamed before this incident occurred.  That does not excuse your behaviour but it does place it in context and, in my view, this offending, which as I have said I find to be out of character, arose in that very particular set of circumstances.

57Finally, you have removed yourself from that environment.  You are living in a supportive environment with another sister, you are working hard, you are a person who has managed to remain hardworking and prosocial in that you have never offended before, your main concentration being on earning enough money to support your children and finding a way to bring them to Australia.

58I would be extremely surprised if you ever offended again or appeared before a court again.

59In all the circumstances, I am prepared to place you on a community corrections order for which you have been found suitable.  Although your counsel did not submit I should take this course, it is also my view that given the character evidence that I have heard and the fact that despite all the hardship you have suffered in your life, you have never before offended except in this rather unique set of circumstances, that you should be given the opportunity, given you have no prior history, of being placed on a community corrections order without any conviction being attached to it.  Therefore, there will be no conviction attached to the community corrections order.

60Before I can place you on this order, Ms Xaashi, I must get your consent, that is you must agree to be placed on this order and I need to explain to you the conditions that you will have to meet whilst you are on this order.

61They are that you must report to the Community Corrections Office in Werribee within two working days of the making of this order; that is by Friday of this week.  The order will last for 12 months.  Whilst you are on this order, you must not commit any other offence.

62You must report any change of address or employment to the Community Corrections Office within 48 hours of that change.  You may not leave Victoria without the permission of the Community Corrections Office.  You must report to and receive visits from the Community Corrections Office and you must obey all lawful directions of the Community Corrections Office.

63I am going to order that you undertake 80 hours of unpaid community work.  This is a little less than I would ordinarily impose in cases of this kind but I note that you work very long hours and that you are doing so in order to support your son and daughter and I do not wish to interrupt that.

64I am going to also order that you attend for treatment for mental health difficulties whilst you are on the order.

65Are you prepared to enter into the community corrections order?

66INTERPRETER:  Yes, she's ready to take that.

67HER HONOUR:  Thank you very much.  Yes.  Thank you.  We will just get the order printed out for you.

68You currently have permanent residence but are not yet a citizen of Australia.  It seems to me that you are exactly the sort of person who deserves to be made a citizen of this country.  You are a strong, hardworking woman.  You are responsible and you have a great deal to be proud of in your life, Ms Xaashi.

69Thank you.  Yes.  Thank you.  We will just get you to sign this please, Ms Xaashi.  Is that a problem for her, Mr Boden?

70MR BODEN:  No, Your Honour.

71HER HONOUR:  All right.  Thank you.

72Thank you.  That takes care of everything.  Thank you for your assistance, Mr Boden, and thank you, Ms Xaashi, for coming to give evidence for your sister and the court wishes you well, Ms Xaashi.  We hope you get your children over here and I hope you have a happy life as soon as you can.  All right?  Thank you very much.

73Yes.  We will adjourn to 9.30 tomorrow morning.  Thank you very much.

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