El Tahir v The Queen

[2011] VSCA 46

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0690

HALUSM MOHAMMED EL TAHIR

v

THE QUEEN

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JUDGES:	BUCHANAN, REDLICH and MANDIE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 February 2011
DATE OF JUDGMENT:	4 March 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 46
JUDGMENT APPEALED FROM:	The Queen v El Tahir,(Unreported, Supreme Court, Curtain J, 19 June 2009)

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CRIMINAL LAW – Appellant pleaded guilty and convicted of intentionally causing serious injury – Knife attack on estranged wife – Breach of intervention order – Sentence of 7 years with a non-parole period of 4 years - Sentence not manifestly excessive –.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr L R C Gwynn	C Marshall & Associates
For the Crown	Mr S M Cooper	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

1. I agree with Mandie JA.

REDLICH JA:

1. I also agree with Mandie JA.

MANDIE JA:

1. The appellant pleaded guilty and was convicted in the Supreme Court on a charge of having, on 6 June 2008, intentionally caused serious injury[1] to his estranged wife.  The appellant was sentenced on 19 June 2009 to a term of seven years’ imprisonment with a non-parole period of four years.  The appellant appeals against the sentence on the ground that it was manifestly excessive.

   [1]See s 16 of the Crimes Act 1958 - maximum term of imprisonment:  20 years.

1. The following account of the offence is drawn from the Crown opening on the plea.

1. The appellant and his wife were married in Somalia in the year 2000 and their first child, a son, was born there in 2002.  They all came to Australia in June 2003 and initially lived in Adelaide.  There were some marital difficulties and the appellant’s wife and son came to Melbourne.  The appellant’s wife was at that stage about six months’ pregnant with her second son.  The appellant’s wife and their two sons eventually lived in a housing commission unit in Carlton.  At some time in 2006, the appellant came to Melbourne and the appellant and his wife resumed co-habitation but further marital difficulties ensued.  In 2007 the appellant’s wife obtained an intervention order against the appellant.  They were subsequently reconciled but the appellant’s wife obtained a further intervention order in May 2008.

1. On the afternoon of Friday 6 June 2008, the appellant was seen at the Carlton Children’s Centre where the younger son was in attendance.  The appellant’s wife collected him and then collected the elder son from his primary school.  The appellant’s wife and children entered the unit and she was about to shut the door when the appellant appeared.

1. The appellant said that he did not want her ‘to be their mother’.  His wife attempted to shut the door but he stopped her from doing so.   He pulled her outside (with the children).  He had a knife in his right hand.  He stabbed his wife in the back with the knife.  While attempting to defend herself his wife was cut on the right hand and fingers in the course of the incident which moved out into a courtyard area.  While his wife was on the ground, the appellant punched and kicked her and pulled some of her hair out.

1. A number of neighbours witnessed the attack.  One neighbour saw the appellant punch his wife in the face when she was curled up on the ground in a defensive position.  Another neighbour saw that the appellant had his wife by the hair and also observed blood.  Another neighbour saw the elder son with the knife that had been dropped by the appellant.  He also saw the appellant’s wife on the ground – she was screaming and the appellant was hitting her.

1. The appellant’s wife was taken to the Royal Melbourne Hospital.  She had an incised wound to the right upper back and multiple deep lacerations to the right palm and to three fingers.  The lacerations cut underlying arteries (causing significant blood loss) and there was tendon and nerve damage.  The appellant’s wife underwent surgery and was discharged from hospital on 10 June 2008. 

1. The knife used by the appellant had been purchased by him earlier in the day at a supermarket in Carlton. 

1. Shortly after this attack on his wife, the appellant attended the Carlton police station and admitted wrongdoing.  He gave an account of kicking his wife.  Later that evening, he attempted to commit suicide and was taken to St Vincent’s Hospital for treatment.  He was later returned to the Carlton police station but a forensic medical officer found him to be unfit for interview.  He was interviewed again at the Prahran police station on Saturday 7 June 2008 and made substantial admissions, although it is fair to say that he endeavoured to downplay his use of the knife. 

1. On 26 September 2008, the appellant offered to plead guilty to intentionally causing serious injury but the factual basis for the plea was not acceptable to the Crown.  In March 2009, a further offer to plead guilty was made by the appellant and accepted on the basis that all the relevant factual material was not in dispute.

1. In a victim impact statement dated 15 June 2009, the appellant’s wife summarised her injuries as being:

Deep knife cuts to palm and back of left hand and three fingers needing approx 20 stitches.  Cannot make a full fist or lift anything with this hand.  Second and third finger are numb.  Cannot use bicycle safely.  Work as a kitchen hand is compromised due to injury.

Property damage was also described as:

Plasma TV was broken.  Front door kicked in.  Punched holes in wall.  Glass coffee top was smashed.

She described her ‘emotional’ trauma as:

I feel unsafe and worried all the time.  I am scared in the house all the time.  I have difficulty sleeping.  I worry all the time at night. … I often think I see him in the street and get very scared …

In ‘other relevant information’, the appellant’s wife states, inter alia:

My older son talks about the crime [and] is scared at night and has bad dreams.  My youngest child is scared …

1. The learned sentencing judge, after summarising the circumstances of the offence, said that she did not accept the appellant’s statement to the police that he had taken the knife with him with the intention only of scaring his wife, while noting that he had accepted responsibility for his conduct and acknowledged that what he did was wrong.  Her Honour said that his purchase of the knife and taking it with him was ‘indicative of a degree of pre-meditation and planning’ and that ‘by your plea, despite your answers in your interview, you have admitted each of the elements of the crime of intentionally causing serious injury’.

1. Her Honour referred to the appellant’s background including that he had been conscripted into military service at the age of 17, that his brother and father had lost their lives in military service, and that, after escaping in a small boat from Sudan to Djibouti, he had been held in prison for three months accused of being a spy and suffering assaults and deprivation.  He was then deported to Somalia where he was placed in an immigration detention centre for two months and, upon being granted asylum, lived in a refugee camp for 12 months during which time he met his wife.  Her Honour said that since coming to Australia the appellant had participated in an English language course and had been gainfully employed.  Her Honour noted evidence from a psychiatrist, Dr Walton, in a written report, that the appellant was ‘suffering from chronic post-traumatic stress disorder, the most prominent feature being a major depressive disorder, the catalyst being the breakdown of his marriage’.  Her Honour said that Dr Walton’s opinion was that the appellant was in need of psychiatric treatment, including long-term therapy to address the psychological damage caused by his experiences prior to coming to Australia and that while he remained in the grip of a major depressive disorder, he would experience prison more onerously than would otherwise be the case and that the appellant was deeply remorseful and his prospects for rehabilitation appeared to be ‘reasonably favourable’. 

1. Her Honour said that the principles of Verdins and Tsiaras were applicable and that she accepted that the appellant’s mental functioning was affected at the time he committed the offence so that his moral culpability for the offence was reduced and that it was therefore appropriate to sensibly moderate considerations of general and specific deterrence.

1. Her Honour said that the maximum penalty for the offence was 20 years’ imprisonment, that Parliament regarded as a serious offence and that she must take into account the nature and gravity of the offence.  On his own admissions, the appellant had consumed alcohol and purchased a knife which he had taken with him to the child care centre, the primary school and the flat.  Her Honour said:

Having said that you did not want your wife to be the children’s mother anymore, you attacked her with a knife, stabbing her in the back and cutting her on the right hand as she sought to defend herself.  You kicked her, punched her and pulled out some of her hair, all this in the presence of your two children and in circumstances which were in breach of the intervention order and where you had previously threatened violence to your wife.

1. Her Honour referred to the consequences to the appellant’s wife and the two boys.  Her Honour referred to considerations of general and specific deterrence whilst also mentioning the appellant’s personal circumstances including his good employment record and lack of prior convictions.  Her Honour said that she took into account the appellant’s remorse and his plea of guilty.

1. After reciting again all the mitigating factors, her Honour imposed the sentence of seven years’ imprisonment with a non-parole period of four years and declared pursuant to s 6AAA of the Sentencing Act ‘that but for the plea of guilty, which would, of course, affect other sentencing considerations, … I would have imposed a sentence in the vicinity of eight years with a non-parole period of five years’. 

1. In support of the single appeal ground that the sentence was manifestly excessive, it was submitted on behalf of the appellant that the offence was undeniably serious but not objectively high in the scale of like cases given that, whilst a knife was ‘brandished’, the injuries were not at the high end of the scale and the incident was short lived.  Reference was also made to the appellant’s mental state.  It was submitted that there were powerful mitigating factors, namely, all of those that had been identified by the learned sentencing judge.  It was submitted that the sentence fell outside the range available.[2] It was further submitted that the reduction in sentence indicated by the s 6AAA declaration was moderate if not inadequate and that this kind of analysis was capable of supporting a submission of manifest excess – see R v Howard.[3] 

   [2]Reference was made to Sentencing Snapshot No 12 (Sep 06) in which a sentence of seven years was in the 95^th percentile, to Sentencing Snapshot No 39 (Feb 08) in which a sentence of seven years was in the 94^th percentile and to Sentencing Snapshot No 93 in which a sentence of seven years was in the 94^th percentile, the average sentence for the offence being from three to four years. 

   [3][2009] VSCA 281, [15] (Nettle JA).

1. Counsel for the appellant conceded the seriousness of the offence and the aggravating circumstances constituted by the purchase and use of the knife, the breach of the intervention order, and the circumstances of domestic violence including the commission of the offence in front of the children.

1. It was submitted on behalf of the Crown that the sentencing judge had given comprehensive reasons and covered all of the aggravating and mitigatory matters and that, given the seriousness of the offence, the sentence was in the range available.  The Crown provided a table of cases that, it said, reflected the variation in factual circumstances and penalties that had been imposed in relation to this offence in recent times. 

1. In my opinion the sentence was not manifestly excessive and, indeed, properly reflected the gravity of the offence after taking into account all mitigatory factors including the plea of guilty.  The Court rightly treated with the utmost seriousness the appellant’s knife attack on his defenceless wife in the presence of their children and in circumstances which included the invasion of her home in breach of a court order.  Further, the relative brevity of the non-parole period might be thought to properly and adequately take into account the personal circumstances of the appellant.

1. As regards the appellant’s submission based upon s 6AAA of the Sentencing Act, I would in part repeat what I said in Giordano & ors v R:[4]

It seems to me that the sentence imposed properly reflects the criminality involved after taking into account all of the relevant mitigating circumstances including the plea of guilty.  In other words, taking into account all relevant sentencing considerations, the sentence imposed was within range.[5] I do not think that it is helpful to advance an argument based on percentages. In any event, in the present case, it seems to me that the actual percentage discount reflected by a comparison of the sentence imposed with the sentence stated under s 6AAA does not betoken error. Nor is there anything in the judge’s reasons to suggest that any of the relevant considerations was overlooked or given inappropriate weight. If, contrary to my view, it were thought that the percentage discount allowed was inadequate then it seems to me that the more likely explanation is that the judge erred, not in relation to the sentence imposed by [her], but in relation to [her] estimation of the notional or hypothetical sentence stated pursuant to s 6AAA.

[4][2010] VSCA 101, [46].

[5]R v Burke (2009) 21 VR 471, [31].

1. I would dismiss the appeal.

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