Khudruj v The Queen
[2012] VSCA 2
•17 January 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2011 0108 | |
| SUHAIL KHUDRUJ | Appellant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | BUCHANAN JA and WILLIAMS AJA | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 17 January 2012 | |
DATE OF JUDGMENT: | 17 January 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 2 | |
JUDGMENT APPEALED FROM: | R v Khudruj (Unreported, County Court of Victoria, Judge Gamble, 6 May 2011) | |
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CRIMINAL LAW – Sentence – Conduct endangering life and firearm’s offence – Restricted involuntary treatment order and hospital security order under the Sentencing Act 1991 not available – Protection of the community an important consideration – Total effective sentence of 6 years’ imprisonment with a minimum term of 3 years and 6 months’ imprisonment not manifestly excessive – No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr A D Trood | Ms E Nickolls |
| For the Crown | Mr T Gyorffy SC | Mr C Hyland, Solicitor for Public Prosecutions (Ms S Aridas) |
BUCHANAN JA:
In August 2010, the appellant was residing in an unused room within a factory in an industrial estate in Sunshine West. The factory was owned by the appellant’s brother and cousin, who were concerned for the appellant’s well‑being because the appellant had no place to live and had been experiencing emotional problems and relationship difficulties.
The appellant was paranoid and delusional. He thought that people were spying on him through tiny holes in the factory walls. He believed that people were coming to get him and he had not slept for 48 hours.
Early in the morning of 8 August 2010, the appellant called 000 and informed the operator that someone was making holes in the factory wall. He refused to co-operate with the operator or answer any questions. He requested police attendance and said that he had barricaded himself inside the factory because people were trying to get him. He told the operator that he was going to start a fire. The police and the fire brigade were dispatched to the factory.
A security guard was nearby the factory. Seeing lights on the fire brigade truck, he went to the factory to investigate. After he stopped his car he heard a bang as if an object had hit his car. Immediately afterwards he heard a man scream. He then heard another bang, louder than the first, and heard a man scream again. The guard drove away. He later discovered a small bullet hole in the rear bumper bar of his car.
Two police officers arrived at the scene and heard a man yelling and screaming. One of the officers saw the appellant standing behind a high cyclone fence and drove towards him so that she could speak with him. As she pulled up she noticed the appellant was carrying a rifle or shotgun pointed skywards. She yelled out ‘Firearm’ to alert her colleague and they drove away. The police notified police emergency communication centre of the situation.
Stopping some distance away, the two police officers put on ballistic vests and took cover behind the rear of the vehicle. One of the police officers heard what sounded like a gunshot coming from the direction of the appellant.
Two other police officers who were patrolling the area in their vehicle, heard music coming from a bus depot. They were concerned for the safety of persons who might be inside the bus depot and alighted from their car to investigate.
They were eight to ten metres away from the factory in which the appellant lived. They heard two shots in close proximity to them. They retreated their car and drove away. As they drove away, they saw the appellant standing behind the cyclone fence of the factory.
Other police officers arrived. They attempted to negotiate with the appellant by telephone but he retreated into the property. The police continued to hear gunshots and saw the appellant light a small fire in the factory yard. The stand off with the police lasted until 7 am. The appellant jumped over a side fence and was then arrested by the police.
The police found in the factory a sawn‑off 22 calibre rifle and ammunition, two telescope sights, three grams of cannabis and various weapons, including five machetes, seven meat cleavers, a sword, two butterfly knives, two flick knives and 30 other assorted knives and a baton.
A forensic medical officer examined the appellant and concluded that he was unfit to be interviewed and that he may have been suffering from a serious psychiatric condition.
The appellant was arraigned in the County Court and pleaded guilty to a presentment containing two counts of reckless conduct endangering life, a count of possession of a registered firearm whilst a prohibited person and a summary charge of possession of cannabis.
After a plea, the appellant was sentenced to be imprisoned for a term of 4 years on each of the counts of reckless conduct endangering life, for a term of 9 months for a count of possession of a registered firearm whilst being a prohibited person and on the summary charge, he was convicted and discharged.
Nine months of each of the two counts of reckless conduct endangering life were cumulated on the other count of reckless conduct endangering life creating a total effective sentence of 6 years’ imprisonment. A minimum term of 3 years and 6 months’ imprisonment was fixed.
The appellant is 30 years’ old. He is one of four children, whose parents are of Palestinian background. The appellant was expelled from school in Year 11. He commenced to study for a certificate in information technology at a TAFE college but failed to complete the course. He has since been employed in welding and as a mechanic and baker.
The appellant was married but the marriage broke down. There were no children of the marriage.
The appellant had 70 prior convictions from nine court appearances. The offences included driving offences, weapons offences and offences of violence.
In the course of the plea, a report by a psychiatrist was tendered. The psychiatrist diagnosed the appellant as suffering either paranoid schizophrenia or schizo‑affective disorder with a mixture of positive symptoms (persecutory and delusion), negative symptoms (impaired insight, psychosocial deficit, disorganisation), language disturbance, perplexity, mood, grandiosity and hypermania and motor symptoms (posturing, psychomotor retardation).
The psychiatrist reported:
The appellant remains insightless into his mental illness and provided me with a minimising account of his behaviour and mental state leading up to the offences. He remains reluctant to take prescribed medication in appropriate doses. His stock piling of weapons has previously been noted and clearly poses a significant risk to the public. His community management in the future will be challenging and should be under the Mental Health Act 1986 as an involuntary patient due to many years of limited insight, poor engagement and poor compliance of medication. Without enforced appliance, he will pose a significant risk of further offending.
Nettle JA heard an application for leave to appeal against his sentence. His Honour concluded that it was reasonably arguable that the sentence was manifestly excessive in the sense that it was arguable that because of the mental state of the appellant, it was inappropriate that he be sentenced to anything other than a restricted involuntary treatment order under s 93 of the Sentencing Act 1991 or to a hospital security order under s 93A of the Act. Accordingly, his Honour granted leave to appeal and ordered a pre‑sentence report pursuant to s 96 of the Act and requested that the author of the report express his or her opinion as to whether it would be appropriate for the appellant to be treated under a restricted voluntary treatment order or a hospital security order.
As a consequence of the orders made by Nettle JA, a report and opinion was provided to the Court by Dr Grant Lester.
A restricted involuntary treatment order can only be made if, inter alia, the Court has received a report in the prescribed form for an authorised psychiatrist recommending the making of the order and stating that there are facilities or services available at that service for the treatment of the person in question. See s 93(1)(b) of the Act. Similarly, a hospital security order can only be made if the Court has received a like report.
Dr Lester reported:
As the appellant is currently in remission of his illness and partially compliant with medication, the Victorian Institute of Forensic Mental Health is not currently able to provide him with facilities for a Hospital Security Order under s 93A of the Sentencing Act.
As regards a Restricted Involuntary Treatment Order under s 93 of the Sentencing Act, these are most usually accepted by an area mental health service for a very well‑known patient under current management as there is an expectation that the patient will be transferred to community management under a restricted community‑treatment order within a short time period. As the appellant has not had any contact with an area mental health service for some years and hence he is an ‘unknown quantity’, it is unlikely that a service would accept the appellant.
It is apparent from the report of Dr Lester that the conditions necessary for the making of a hospital security order or restricted involuntary treatment order have not been satisfied.
Insofar as the appeal is concerned with manifest excess in the sense that any term of imprisonment rather than an order pursuant to s 93A of the Act was inappropriate, the appeal must fail.
In my view, however, it is appropriate to also treat the appeal as a conventional appeal against sentence.
The grounds of appeal are as follows:
1.Manifestly excessive individual sentences and cumulation on counts 1, 2 and 3.
2.Manifestly excessive individual sentence and cumulation related summary offence.
3. Manifestly excessive non‑parole period.
4. Manifestly excessive total effective sentence.
5. Fail to take into account the early plea of guilty.
Relying upon the principles set out in R v Verdins (2007) 16 VR 269, counsel for the appellant submitted that as a result of the appellant’s mental condition, his moral culpability was reduced. General and specific deterrence should be given little or no weight as the sentence would weigh more heavily upon the appellant. Counsel for the appellant also relied upon the fact that the appellant recognised that he had brought shame to his family by his actions, he had entered an early plea of guilty and he enjoyed ongoing family support.
The offences committed by the appellant were grave and had the potential to cause great harm. Although the counts of reckless conduct endangering life arose in a relatively short time span, the conduct constituting each count was discrete and in my view warranted the cumulation ordered by the sentencing judge.
The sentencing judge expressly took into account the fact that the appellant
suffered a serious psychiatric illness. He applied the principles set out in R v Verdins
and reduced the appellant’s moral culpability and ameliorated the weight given or to be attributed to general and specific deterrence and denunciation. He also took into account the fact that the term of imprisonment would be more burdensome upon the appellant by reason of his mental illness.
There remained, however, the important factor of protection of the community. In the light of the appellant’s prior criminal history, lack of insight and his reluctance to cooperate with the treatment for this disorder, I do not consider that the sentence imposed upon the appellant was outside the range available to a reasonable sentencing judge.
Counsel for the appellant at the plea sought a longer than usual non‑parole period. Even if the period fixed by the sentencing judge is to be seen as not longer than usual, I do not think that it demonstrates error. The term fixed does seem to me to be the minimum term that, in the circumstances of this case, justice required.
For the foregoing reasons I would dismiss the appeal.
WILLIAMS AJA:
I agree that the appeal should be dismissed for the reasons given by the honourable presiding judge.
BUCHANAN JA:
The order of the Court is that the appeal is dismissed.
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