Director of Public Prosecutions v Yusof
[2018] VCC 1903
•9 November 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00686
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MUHAMAD ZAHARI BIN YUSOF |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 October 2018 | |
DATE OF SENTENCE: | 9 November 2018 | |
CASE MAY BE CITED AS: | DPP v Yusof | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1903 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – SENTENCING
Catchwords: Intentionally cause injury – burn injuries caused after victim had hot water thrown at her – plea of guilty entered following contested committal – unlawful non-citizen – deportation likely following completion of sentence – immediate term of imprisonment imposed
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Albert | John Cain Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr J Miller | Dowsley & Associates |
HER HONOUR:
1 Muhamad Yusof, you have pleaded guilty to one charge of intentionally cause injury.
2 The charge is objectively serious, and that is shown by the maximum penalty that is set down by Parliament, and that is ten years’ imprisonment.
3 The charge relates to events that occurred on 6 March 2017. You caused injury to your housemate, Salina Ismail, by throwing a plastic container that had hot water in it towards her, that struck her and caused injury.
4 Both you and Ms Ismail are Malaysian citizens by birth. Ms Ismail is living in Australia on a bridging visa.
5 You had travelled to Australia as a young child, aged 14 years, on a holiday visa that had expired so that you are therefore deemed to be an unlawful non-citizen.
6 You were sharing a house in Springvale South with others, including your girlfriend Ms Binit and three others.
7 The context to the offence was that Ms Ismail had expressed her dissatisfaction with you via a group SMS to the residents of the house, where she complained about having to clean up your dirty dishes and mugs in the kitchen, and she expressed her anger. The group SMS was sent to you and the other household members at 5 am on 6 March 2017. A response was received from your girlfriend’s mobile phone, “OK boss.”
8 Later that same day at about 7 pm, you and others were in the kitchen cleaning. One of the housemates, as per usual practice in the house, had boiled some water and poured it into a 2 litre plastic jug that was intended for drinking water by the residents. The container was left on the kitchen bench.
9 A verbal dispute arose between you and Ms Ismail in the kitchen about your failure to clean your dishes. You became angry and without warning picked up and threw the drink water plastic jug at her face. She was able to deflect the jug from hitting her head, however, the water spilt over her thighs and onto her chest.
10 In the prosecution opening that was read on the plea hearing it is accepted that you did not know that the water in the jug had just been boiled, and you intended to cause injury to Ms Ismail by throwing the jug with water in it at her, but you did not foresee the injury to her by the water being hot.
11 Initially Ms Ismail felt a bit of pain and there was a discussion between you and her about what had happened, after which discussion you left, and went upstairs to your bedroom.
12 Ms Ismail went to the bathroom and took off her wet clothes. At that time she noted her skin was badly burnt. She felt very dizzy and nearly passed out with pain. She fell and cried out for help.
13 She was taken upstairs to her bedroom by her housemates and some cream was applied to her injuries. Several hours later she was taken to the Monash Medical Centre where she was admitted and treated for her burn injuries.
14 At some stage that night you and your girlfriend Ms Binit packed up your belongings and left the boarding house.
15 Ms Ismail subsequently reported the matter to the police, and eventually you were arrested and interviewed on 18 October 2017, with the assistance of a Malaysian interpreter, about these events.
16 You told police that you had known Ms Ismail for about two to three months before the incident and that she was always scolding you and arguing with you. You said that you could not recall incident involving the hot water as it was too long ago and that you were under pressure from your visa being rejected. I interpolate here that you had travelled to Australia as a young child aged 14 on a holiday visa that had expired, and that you were in Australia as an unlawful non-citizen, and you were seeking to apply for a visa to remain in Australia.
17 You denied to police that you quarrelled with Ms Ismail you said that you left the boarding house because you did not want any further problems with Ms Ismail.
18 The effect of your offending has been quite serious, and I have had regard to both the medical material and also the contents of Ms Ismail's victim impact statement. I have also viewed the photographs taken at the time of the injury, and some that are more recent, dated 19 July 2018.
19 Ms Ismail suffered significant burns to both of her thighs and to her chest, associated with extensive pain and the necessity for a skin graft to her right thigh, that covered approximately a 5 x 15 centimetre area from her right thigh to her knee, and necessitated outpatient treatment for six months.
Dr Maaike Moller, who is a forensic medical examiner, in the report that she prepared after reviewing the medical records and the photographs of the injuries, concludes that she suffered burns to six to 8 per cent of her total body surface area, most of which burns were to the legs, and the rest to her chest. The burn on the right thigh (1 per cent) was a third degree burn, that is, full depth structure of skin burnt, including the outer skin, dermal layer and deeper structure. Ms Ismail has significant permanent scarring from her injuries. The burn injuries to the chest and legs, taken together, are a severe example of simple injury.
20 In formulating the appropriate sentence I am required to have regard to the nature and gravity of your offending (s5(2)(c) Sentencing Act 1991), the impact of your offending on the victim (s5(2)(daa)), and any injury resulting directly from the offence (s5(2)(db)).
21 In the Court of Appeal of Eade v The Queen; Vanstone v The Queen [2012] VSCA 142 the court has held that sub-s.5(2)(daa) and 5(2)(db) of the Sentencing Act 1991 have displaced the common law of reasonable foreseeability. It is irrelevant, therefore, whether or not the injury, loss or damage suffered by a victim was “reasonably foreseeable” by you. The only requirement is that the injuries be a “direct result” of the injury.
22 The seriousness of the offence, however, must be gauged not only by the injury itself, but also the method by which it was occasioned[1]. I must take into account your moral culpability and degree of responsibility for the offence as part of the factors that I must take into account when considering what is just punishment.
[1] See Phillips v The Queen [2017] VSCA 313 [54].
23 The prosecution accepts, having regard to the particular circumstances of this case, that moral culpability is reduced, and you will be sentenced on that basis.
24 At the plea hearing, through an interpreter, you were read the content of the victim impact statement.
25 Ms Ismail describes the physical pain attributable to the burn injuries as well as the pain associated with having to have a skin graft. She refers to her permanent scarring and says that she is reluctant to tell others about her scarring, and she covers up her scarring. She finds it difficult to sit for any length of time because of the stretching sensation in her scars that she feels, and the injury has meant that she has had difficulties finding work.
26 Ms Ismail is presently living in Australia on a bridging visa. Financially it has been very difficult for her because she had to take two months off work attributable to the injuries, and time off to attend various medical appointments.
27 I accept that you are genuine insofar as your expressed sorrow for the victim is concerned, and through Mr Miller, you acknowledge the seriousness of this offending. You state that you felt no ill will towards the victim and would do anything to help her if you could. Your hope is that she can return to a normal life.
28 I accept that this was a momentary lapse of judgement on your behalf. You acted irresponsibly and immaturely when challenged by Ms Ismail about her grievance with you concerning your domestic habits. You now understand what you did was wrong and acknowledge that the consequences have been very serious for Ms Ismail.
29 You are still a relatively young man at age 23. As stated earlier you were born in Malaysia. You grew up in the Selangor Province, south-west of Kuala Lumpur, and you are the sixth of seven siblings. Your family remain in Malaysia. Two of your siblings live overseas, one in Australia and one in Korea.
30 When you were aged ten your parents separated, and you spent time with each parent growing up following the separation. Your formal schooling is minimal. You left school at the equivalent of Grade 6 and began working at a relative’s restaurant as a kitchen hand and cleaner.
31 You have survived doing casual work in Australia, working on farms picking vegetables and grapes, predominantly in Victoria but at times travelling to South Australia. You have limited English and your first language is Bahasa Malaysia. You are very isolated in prison. None of your family have been told about your whereabouts and you have had only limited contact visits.
32 Because of your poor command of English you have not been able to undertake any coursework or programs. You have occupied your time in prison playing soccer, going to the gym and attending the mosque.
33 You understand that you will be deported back to Malaysia once you complete your sentence, and that is a real cause for anxiety to you, given that for almost ten years you have lived independently in Australia, and you have no real connection to your country of origin.
34 I accept all the matters that were put before me by your counsel, Mr Miller, on your behalf. I accept that you entered a plea, at an early stage following contested committal and prior to trial, and that your plea has real utility. You have saved the expense and inconvenience of a trial being conducted, and that is important because you have spared the victim Ms Ismail having to be further traumatised by giving evidence. You have facilitated justice and your sentence will be discounted accordingly.
35 I am satisfied that it is genuine evidence of remorse, and that is a very important element in the sentencing discretion. Your remorse indicates realistic prospects for rehabilitation and a reduced need for specific deterrence. That is so notwithstanding your lack of concern at the time of the offending, because I am satisfied your subsequent remorse does reflect a realisation of that earlier lack of consideration, once you were aware of the full extent of the jury suffered by Ms Ismail.
36 You are relatively youthful and that is important in your sentence.
37 You are a person who is otherwise of good character; there is no prior criminal history.
38 This is the first time you have ever been held in a gaol setting, and I accept that that has been difficult for you because of your limited command of English and the fact that you are so isolated, having no connections in Victoria.
39 As an unlawful non-citizen, you will be deported back to Malaysia upon completion of your sentence. This is not a case where the risk of deportation is weighing heavily upon you because you would not have had a realistic expectation of remaining in Australia, given your migrant status.
40 In sentencing you it is necessary to emphasise general deterrence. Specific deterrence is somewhat moderated, having regard to the earlier comments I have made.
41 Overall I consider that you have excellent prospects of rehabilitation and your risk of reoffending is low.
42 Given all the circumstances, I consider that the imposition of a gaol term is the only appropriate disposition.
43 I will announce the formal court orders. In respect to the one charge of intentionally cause injury, you will be convicted and sentenced to two years and six months’ imprisonment, and a non-parole period of 15 months is fixed.
44 I make the following declaration of pre‑sentence detention. I declare that you have already served 387 days as pre‑sentence detention, and direct that that be entered into the records of the Court.
45 But for your plea of guilty, I would have imposed a term of three-and-a-half years, to serve two-and-a-half years.
46 I note that an application was made pursuant to s.464ZF for the taking of a forensic sample. Having regard to the particular features and circumstances of this matter, I do not grant that application.
47 That concludes my sentencing remarks. I do not believe there is anything else I need to refer to?
48 MR MILLER: Not from my end, Your Honour.
49 HER HONOUR: No, all right, good. Thank you Mr Ting for your assistance. Do you think that Mr Yusof understands the sentence? The actual sentence is two years six months' imprisonment, and he is eligible for parole from 15 months. The Correctional authorities will take into account already the 387 days he has served, so he will be eligible for parole shortly. Mr Miller can explain to him downstairs what that means. Is that clear? Yes, thank you. Thank you very much for your assistance. We can adjourn.
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