Nawrozi v The Queen
[2012] VSCA 272
•1 November 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0251
| HAFIZULLAH NAWROZI |
| v |
| THE QUEEN |
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JUDGES: | BUCHANAN and OSBORN JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 1 November 2012 | |
DATE OF JUDGMENT: | 1 November 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 272 | |
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CRIMINAL LAW – Sentencing – Application for leave to appeal against sentence imposed in respect of one charge of causing serious injury recklessly – Stab wound to the back of 13 year old boy attempting to defend his mother – Sentence not manifestly excessive – No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the appellant | Mr T Kassimatis | Valos Black |
| For the respondent | Mr P B Kidd SC | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
I will ask Osborn JA to deliver the first judgment.
OSBORN JA:
On 7 December 2011, the applicant pleaded guilty in the County Court to one charge of causing serious injury intentionally and one charge of causing serious injury recklessly. On 15 December 2011 he was sentenced to eight years' imprisonment on the first charge and four years on the second charge. Two years of the second sentence were cumulated on the first resulting in a total effective sentence of 10 years. The sentencing judge fixed a non‑parole period of seven years. Her Honour stated that the total effective sentence she would have imposed had the applicant not pleaded guilty would have been 12 years' imprisonment with a non‑parole period of nine years.
The applicant seeks leave to appeal on the basis that the sentence imposed for the second charge is manifestly excessive both in itself and with respect to the order made for cumulation.
On 2 May 2012, Maxwell P refused leave to appeal. The applicant has now elected to have his application determined by an appeal bench constituted by at least two judges.
The applicant was in a de facto relationship with Marina Maroni between 2003 and 2009. As a result of occurrences within that relationship, Ms Maroni obtained an intervention order in the Dandenong Magistrates' Court to protect herself and her two children, Alex and Alexia, from being assaulted and harassed by the applicant. The applicant breached this order repeatedly and Ms Maroni moved to an address in Preston in order to try and evade him.
After locating Ms Maroni's new address, the applicant determined to confront her on 29 August 2009. The applicant put on dark clothing with a hooded top and armed himself with a 30 cm long Annalong kitchen knife. On arriving at the
premises he hid behind wheelie bins in the driveway and waited for Ms Maroni to return home.
Ms Maroni and her two children arrived home at about 8.10 pm. The applicant attacked Ms Maroni with the knife as she was putting the key into the front door. He stabbed her in the head a number of times. One centimetre of the tip of the knife became dislodged and embedded in Ms Maroni's skull. The stabbing caused extensive head wounds and a serious defensive wound to Ms Maroni's left arm between the wrist and elbow.
Ms Maroni's son, Alex, who was then aged 13, attempted to defend her during the applicant's attack and became involved in a struggle with the applicant. During this struggle, the applicant stabbed Alex in his back. Alexia (then aged 11) intervened and hit the applicant with her bag containing swimming equipment. At this the applicant fled the scene.
After help had arrived, Ms Maroni and Alex were both transported to hospital for treatment. Ms Maroni underwent surgery to remove the knife tip from her head and also had a titanium plate inserted in her skull. She was further treated for some seven stab wounds to her head, a laceration behind her left ear and a significant laceration to her left arm. Alex received three stitches for the stab wound to his back.
The sentencing judge encapsulated the incident by stating:
You viciously attacked a woman trying to enter her own home in the presence of her two young children. You repeatedly stabbed her despite her children's attempt to intervene and you also caused injury to her 13‑year‑old is son.
It is submitted on behalf of the applicant that while it is conceded the injury sustained by Alex amounted to a serious injury, nevertheless it could not be argued that it was ‘significant or life‑threatening’. It is further submitted that the injury sustained by Alex was inflicted in a way that was ‘almost incidental’ to the furious attack upon Ms Maroni.
It is submitted that in the circumstances of this case, a sentence of four years' imprisonment on Charge 2 is so far beyond an appropriate range as to bespeak manifest excess. It is also submitted that the order made for cumulation does not reflect the position taken by the prosecution upon the plea that a small amount of cumulation only was appropriate. Nor, it is submitted, did the sentencing remarks of the sentencing judge justify the extent of cumulation proposed with respect to Charge 2.
In the course of the sentencing remarks, the judge noted:
In his victim impact statement, [Ms Maroni’s] son, Alex, described a terrifying struggle with you as he tried to defend his mother. He wrestled with you, receiving a blood nose, bruising and eventually the knife wound to his back. He now has scar tissue from that wound which causes pain in his shoulder and that has resulted in him no longer being able to play football. He also described your threats during the period that you were involved with his mother and the disintegration of their lives as they moved to avoid you.
In my view, the judge's finding as to the nature of the injury, based as they were on evidence before her, clearly demonstrate that it was a serious injury.
The assault upon Alex was itself a very serious offence. It was aggravated by the youth of the applicant’s victim, the fact that the stabbing was inflicted upon him when he was seeking to protect his mother who was already seriously injured, the fact it occurred in breach of a suspended sentence of imprisonment imposed in respect of a breach of intervention order intended to protect Ms Maroni and her children including Alex, and the fact that it constituted part of a series of attacks upon the family unit in which the boy might normally expect to find security.[1] It demonstrated a vicious disregard for the probable consequences of the applicant’s
actions and represented the culmination of a history of violent defiance of court orders intended to protect not only Ms Maroni but also her family.
[1]The sentencing judge recorded:
In this matter you have a number of prior court appearances. In 2006 you received a suspended period of imprisonment of 46 days in relation to stalking another person, making a threat to call and recklessly causing injury. On 24 April of the same year you received a three month term of imprisonment to be served by way of Intensive Corrections Order. That was for breaching an intervention order. On 26 September in the same year you received one months' imprisonment to be served by way of an Intensive Corrections Order in relation to two charges of making a threat to kill and unlawful assault. On the same day you were dealt with for a breach of the earlier sentence in relation to the stalking matter, however, no order was made to restore that suspended sentence. On 15 September 2008 you were sentenced to two months' imprisonment wholly suspended for a period of 12 months for again breaching an intervention order. This offence, for which I am sentencing you today, occurred on 29 August 2009 and in my calculation breaches that suspended sentence.
In my view the sentencing orders are with respect to the reckless serious injury of Alex are entirely justified. There is no sensible basis upon which they could be regarded as manifestly excessive. The escalation of the attack beyond Ms Maroni so as to involve the son was itself deserving of a substantial period of imprisonment.
The sentencing judge was correct to conclude that the offending raised significant issues of general deterrence, specific deterrence and just punishment. She gave due weight to the applicant's personal circumstances including the fact that he came to this country as a refugee and was suffering significant isolation in prison.
Part of the applicant's submission appears to be, in effect, that the offending against the mother was so bad that notions of parity in effect require a lesser sentence to be imposed with respect to the assault on the son than that which was in fact imposed. For reason I have explained, I do not accept that this submission adequately recognises the gravity of the offending comprised in Charge 2. When regard is had to the nature of that offending, I do not accept that it is reasonably arguable the sentence imposed was manifestly excessive.
I would dismiss the application.
BUCHANAN JA:
I agree.
The order of the Court is that the application for leave to appeal against sentence is dismissed.
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