R v Aggelidis
[2008] VSC 445
•29 October 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1618 of 2007
| THE QUEEN |
| v |
| ARTHUR AGGELIDIS |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 October 2008 | |
DATE OF SENTENCE: | 29 October 2008 | |
CASE MAY BE CITED AS: | R v Aggelidis | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 445 | |
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CRIMINAL LAW – Sentence – Intentionally causing serious injury – Very serious permanent injury to victim – Prisoner’s impaired mental state – Substantially mitigating circumstance.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P D’Arcy | Stuart Ward, Acting Solicitor for Public Prosecutions |
| For the Accused | Mr W Stuart | Ronald V Tait |
HIS HONOUR:
Arthur Aggelidis, you have been found guilty by the jury empanelled on your trial of intentionally causing serious injury to Edward Ahamed Dib at Reservoir on 28 April 2007. You were acquitted of the attempted murder, and the attempted defensive homicide, of Dib.
The circumstances of the incident, which gave rise to your conviction, were very much in dispute in your trial. It is necessary for me to make findings of fact consistent with the jury’s verdicts, and in accordance with the evidence at your trial. In order to do so, it is convenient, first, to identify those facts which were not in dispute.
The incident occurred at the premises of Ms Yvonne Nicholls at 181 Edward Street, Reservoir. At that time you were living nearby in a unit in George Street. You frequently visited Yvonne Nicholls at her home and were on good terms with her. Ms Nicholls was heavily addicted to amphetamines. Your evidence, which I accept, was that she would sometimes share amphetamines with you, and that on the day of the incident you had smoked some of that substance.
Dr Dib gave evidence that he obtained a medical degree in St Petersburg in 2000. After migrating to Australia, he sat further examinations in order to qualify for practice as a medical practitioner in Victoria. He was a friend of Ms Rouba Hayek, who in turn was on friendly terms with Ms Nicholls. Ms Hayek herself used amphetamines.
In the week before the incident, Dib and Hayek had visited Ms Nicholls at her home in Edward Street. At the request of Yvonne Nicholls, Dib injected her with amphetamines in her jugular vein. Ms Nicholls had been having difficulty injecting herself because of the amount of scarring she had from previous injections. Accordingly, Dib acceded to her request that he inject her. Ms Nicholls stated that on that occasion Dib and Hayek also left with her a quantity of drugs which she believed to be amphetamines, but which she later ascertained were amphetamines laced with ice. In her evidence she stated that, on the night before the incident in question, Hayek had made a demand of her of $2,000 in payment for those drugs. Those allegations were denied by Dib and Hayek in their evidence.
During the day of the incident you attended at Ms Nicholls’ house. Shortly before 6.00 pm Dib and Hayek arrived there. There is conflicting evidence as to why they attended, and of what then occurred. However, it is undisputed that, shortly after their arrival, an incident occurred at the front of the premises, in which you and Dib came to blows. It is also undisputed that you were struck during that incident by Dib, as a result of which you fell to the ground. As a result of that incident, you became faecally incontinent, which was described by Dr Morgan as being a response to extreme fear. You then went inside Nicholls’ house, and Dib remained outside. You went to the toilet, cleaned yourself up, and obtained a knife from the kitchen at the rear of Nicholls’ house. Having done so, you then went outside. There a further incident occurred, in the course of which you stabbed Dib in the left eye with the kitchen knife. As a consequence of that stabbing, Dib was very seriously injured. He lost consciousness and was conveyed by MICA ambulance to the Royal Melbourne Hospital. For some time he was in a coma. As a consequence of the incident he lost his left eye, and has suffered significant impairment to the right hand side of his body, and an impediment to his speech.
The facts which I have so far stated are uncontroversial. I now make findings of fact about those matters which were in dispute. First, I am well satisfied that during the week before the incident in which Dib was stabbed, Dib and Hayek did supply a quantity of drugs to Yvonne Nicholls. I am also satisfied that on the evening before the incident, Hayek contacted Nicholls, and demanded that she pay a large sum of money for those drugs. I was unimpressed by the evidence of both Dib and Hayek. I do not consider that either of them were truthful about their previous dealings with Nicholls, or about the reason why they attended at her house on the day of the stabbing. I am well satisfied that they were not requested by Nicholls to attend at her house on that day, as claimed by Dib, but, rather, that they both went there in order that Dib might enforce payment from Nicholls of the debt, which he claimed to be owed to him and Hayek for the drugs supplied to Nicholls.
At that time Dib had been involved in body building, and on his own admission he used steroids for that purpose. I am satisfied that it was Dib who went to the front door in order to demand payment. He met you at the front door and, in an angry and loud voice, demanded that he be paid the money which he claimed to be due to him. There then followed a physical confrontation between Dib and yourself, which was instigated by Dib. During that confrontation, which occurred on the front verandah, you both struck each other. Dib was physically stronger than you, and he threw or forced you into the front garden. I am satisfied on the evidence of both Nicholls and yourself that, at that point, Dib punched you on a number of occasions, and also kicked you while you were on the ground. While I consider that your evidence was exaggerated as to the number of times you were punched and kicked, I am well satisfied that Dib struck you on several occasions, and that he also kicked you. Dib’s evidence that he only punched you once is contrary to that of Nicholls, and is also unsupported by the evidence of Dr Morgan, who later observed a number of injuries to your face, which were consistent with more than one blow. As a result of that beating, you curled into a foetal position, and you were so frightened that you became faecally incontinent. Ultimately, Dib himself became fatigued as a result of his exertions, and he desisted. That enabled you to make your way back inside Nicholls’ house.
As I stated, at that point you cleaned yourself up, and armed yourself with a kitchen knife. In your evidence you stated that you wished to go home, and that you only armed yourself with a knife in order to frighten Dib away, so that you could make your way past him and walk home. In your interview with the informant, Detective Senior Constable O’Connor, you said that you were angry, upset and afraid when you returned to Nicholls’ house, and that you grabbed the knife from the kitchen to hurt Dib back. By its verdict, the jury was satisfied that you were not acting in lawful self-defence in stabbing Dib with the knife. On the evidence adduced at your trial, I am persuaded that the jury was satisfied beyond reasonable doubt that you were acting out of anger and humiliation, and not to defend yourself, when you took the knife and went into the garden with it. There was a conflict in the evidence between the witnesses as to whether Dib was seated on the front fence, or standing and struggling with you, when the actual stabbing took place. I accept that in fact Dib was standing at the time you struck him with the knife. Although Thomas Salakianos was reluctant to come to Court, I consider that he was an honest and reliable witness. I accept his evidence that the stabbing took place at or near the front fence, that Dib was then standing, and that the two of you were confronting each other at that critical time. I further find that the incident occurred very close to the front fence. Mr Salakianos stated that in fact Dib was standing on the footpath. Mr Prasad’s evidence puts Dib in the garden, a few feet from the fence. However, he was further from the scene than Salakianos. Further, all the blood stains were on the footpath. Your descriptions of Dib going backwards, and then “flipping” over the fence, lacked credibility.
Thus, I find that after you exited the house with the knife in your hand, Dib stood up from the fence, you approached him, and you and Dib confronted each other. In the course of that confrontation, you angrily stabbed him in the left eye. Dib then fell to or across the fence. You were so enraged by his earlier assault of you that you then struck him in the teeth with the handle of the knife, and kicked him in the head. Having expended your anger, you departed the premises and went home. By then you had some understanding of the enormity of your actions. Indeed, you told the witness John Conadis, who saw you while you were walking home, that you thought you had killed a man.
Thus, I am satisfied that the initial incident which preceded the stabbing was instigated by Dib, who had come to the house at 181 Edward Street to enforce payment of the drug debt owing to him and Hayek. I am satisfied that it was Dib who sparked the first incident by being physically aggressive to you. I am also satisfied that he punched you on several occasions and kicked you, so much so that you became terrified at that stage. However, as I stated, on the evidence at your trial, I am satisfied the jury found that when you obtained the kitchen knife from inside the house, while you may still have been in fear of Dib, your purpose was to vent your anger on Dib. It is clear from the verdict that the jury was satisfied beyond reasonable doubt that at the time of the stabbing you were not acting in self-defence. I reject the evidence of Hayek that at the time of the stabbing Dib was sitting on the fence. I accept that he was standing near you, and that you confronted each other. However, I am satisfied the jury found that you were not then acting to defend yourself, but rather that you expended your rage on him by stabbing Dib with the knife and then assaulting him.
As a result of the incident, Dib suffered severe injuries. The evidence of Mr Jithoo, the neurosurgeon who attended Dib at the Royal Melbourne Hospital, was that the stab wound inflicted by you destroyed Dib’s left eyeball, and penetrated deep into his skull, causing injury to the deep nuclei of the brain. You just missed severing the internal carotid artery by one or two millimetres. As a consequence, Dib has totally lost his left eye, and suffers substantial paralysis of the right side of his body.
While, as I have found, the jury rejected your account that you considered you were acting in self-defence, when you obtained the knife and then stabbed Dib, nonetheless, on the evidence that was put before me on your plea, it is clear that your long-standing psychiatric problems played a significant role in your offending. In particular, it is clear that while you were not acting to defend yourself, nonetheless your fear of Dib played a significant part in what occurred. In order to better understand your offending, and to identify appropriate mitigating circumstances in your case, it is necessary to detail your background. In that respect I was greatly assisted by the thorough and skilful plea made on your behalf by your counsel, Mr Stuart.
You were born in December 1981, and are accordingly 26 years of age. You come from a good family. Your father was a building supervisor, and your mother is an assistant accountant. Your father has had a number of health problems, and in particular he has twice undergone open heart surgery. You come from a stable home, and your two sisters each have families of their own.
Initially in your primary school years you did well. In hindsight, your mother considers that even at that early stage there were signs, not then understood, that you did have some intellectual and psychological difficulties. However, your problems largely emerged after you were moved to Lalor High School in Year 9. You then commenced taking drugs, and after a short time became addicted to cannabis. Your education suffered as a consequence, and you found yourself in trouble at school. You left school at about the age of 16. During the next 10 years, your work record could best be described as patchy. You first obtained some employment as a pastry chef at a café, and then subsequently at a bakery. Later you did some labouring work for your father. However, it would appear that your work history has been interrupted both by your drug abuse, and also by psychiatric problems which became evident in your late teen years.
In May 1999, when you were then 17 years of age, you had your first psychotic episode. You were admitted, with the assistance of the local police, to the Northern Hospital as a patient of the Northern Area Mental Health Service. There you were diagnosed to be suffering from schizophrenia, although your mother considers that she was only told some years later of that diagnosis. Your symptoms then, and subsequently, have included persecutory delusions, ideas of reference, auditory hallucinations and formal thought disorder. After a period of hospitalisation, you were discharged home on anti-psychotic medication. At first you fared well after your discharge. You were compliant with your medication, and desisted from using cannabis. Unfortunately, after a short time, you went downhill. You did not fully comply with your medication, and you commenced using marijuana. As a result your mental state deteriorated, so much so that, in May 2000, you were again admitted as an involuntary in-patient to the Northern Hospital. Again, after your discharge from that hospital, you initially progressed well. However, once again, your condition deteriorated as you ceased to be compliant with your medication, and recommenced taking cannabis. There then followed, over the next three years, some four additional periods of hospitalisation, in October 2001, July 2002, January 2003, and December 2003. On each occasion, except the last, the same pattern emerged whereby, a short time after your discharge, your mental state deteriorated as you persisted in abusing cannabis and other illicit substances.
In December 2003, you were again admitted on an involuntary basis to the Northern Hospital. At that time your parents were advised that it may be appropriate that you be placed in a community care unit, which provided for 24 hour supervision of you, while you developed the capacity to live independently of your parents. For that purpose you first went to Queen’s Lodge in Lalor, and then in June 2004, you were transferred to the Community Care Unit in Woods Street, Preston. You remained at that unit for a period of 16 months, until October 2005. During that period, your family noted a distinct improvement in your conduct, and in your mental state. You learnt how to cook, and began to master a number of features of independent living. You were in good health and your mental state was improving. However, unfortunately, you were unable to maintain your improvement. During free time which you were allowed, you started to smoke cannabis. You ceased to participate in other outings and functions which were arranged for you. Eventually, those responsible for the Community Care Unit determined to move you from Woods Street into alternate accommodation, where you would live on your own. Your family opposed that course, as they perceived that you were not at that time in a state to make that transition. Nevertheless, and against their wishes, you were moved to a unit belonging to North East Housing in George Street, Reservoir, a short distance from Yvonne Nicholls’ home in Edward Street.
After your move to George Street, you at first managed well. Your mother observed that you were looking after yourself in your unit, and were managing successfully with day to day living. You were proud of your home, and at first your progress was promising. However by 2006, the same pattern of relapse had commenced to become evident. You commenced to use, and increased your use of, marijuana. It also seems from the evidence in the trial that you used amphetamines. You ceased to look after yourself and your unit. You found you could not cope with day to day living, and with the simple domestic chores required to maintain your unit. Your family observed you on a number of occasions to become distraught. After your arrest in April 2007, your mother found evidence that, during that period, you had not been fully compliant with the taking of your medication which was provided by the mobile support team. By late 2006 a number of incidents occurred which, in hindsight, signified your deteriorating mental state. In September 2006 you threatened a case worker. In December 2006, you were not well enough to attend a dinner which had been arranged by your family for your birthday. On Christmas Day 2006 you refused to attend a family dinner, which, earlier on that day, you had been keen to attend. Further such incidents occurred in early 2007. In this respect I note that Dr Kleeberg, the consultant psychiatrist of North Western Mental Health, in January 2007, wrote a report stating that your ongoing illicit substance use, your impaired insight, your poor impulse control and your anti-social personality traits were all poor prognostic indicators. Regrettably, that comment proved to be somewhat prophetic.
As I have stated, the formal diagnosis of your condition by North Western Mental Health Service is that you suffer from paranoid schizophrenia, combined with poly-substance abuse. That diagnosis was first made in 1999, and indeed Dr Kleeberg’s report indicates that sub-clinical symptoms of that condition had emerged some two years before that. Over the last nine years, you have been treated with a variety of anti-psychotic medications, including Olanzapine, Risperidone, Quetapine and Clozapine. Your current medication, Abilify, appears best capable of controlling your psychotic symptoms.
Your mother, who was a most impressive witness, gave detailed evidence, focussing on your psychiatric history, and the symptoms from which you suffer as a result of your condition. For the purposes of your sentence, it is significant that she described to me the circumstances in which you, from time to time, suffer from quite acute anxiety. In particular, you are prone to suffering from episodes of fear and panic. In that state, you lack the capacity to properly think through your actions, and to form appropriate judgments. You have problems expressing yourself, and are prone to outbursts of anger. Nevertheless, your mother told me, and I accept, that you are not a physically violent person. That evidence is reinforced by the circumstance that, while you do have three previous convictions, none of them are for violence.
It is against that background that I return to the circumstances of the offence for which you have been convicted. As I have already stated, the jury, by its verdict, was satisfied beyond reasonable doubt that you were not acting lawfully in self-defence. Mr Stuart has submitted to me that it would be consistent with the verdict of the jury for me, on the evidence called on your plea, to accept that nonetheless you did hold the belief that it was necessary for you to take hold of, and use, the knife in order to defend yourself from Dib. While such a finding would not, strictly, be in conflict with the verdict of the jury, I do consider that such a finding would be in conflict with the evidence at your trial, on which the jury rejected self-defence. Further, I am satisfied, in any event, when you obtained the knife, and used it to stab Dib, you were not acting simply out of a belief that you needed to defend yourself against Dib. In my view, given the evidence that has been put before me, such an approach would be overly simplistic.
Rather, as I indicated in the course of your plea, I am satisfied that when you obtained the knife, and when you used it against Dib, you were acting out of a combination of anger, humiliation and fear. You had been subjected to a significant beating at the hands of Dib, who was much stronger than you, and I have no doubt that you were particularly frightened by that. However, I consider that your predominant motivation was that of anger. Nevertheless, I accept that at that time, because of your psychiatric problems, and particularly because of your fear of Dib, you were not in a condition to form a sensible and proper judgment as to what you should do. I was particularly persuaded by your mother that, in such situations, you do not have the capacity to think your way through a problem, but rather that you are given to reacting inappropriately.
The circumstances of your offending, and in particular your psychiatric problems, clearly bring into operation the principles which have been discussed in a number of the cases, and which were compiled in the decision of the Court of Appeal in R v Verdins[1]. First, I am satisfied that, as a result of your psychiatric condition, and the circumstances of the offending, your culpability for your actions is significantly reduced. In particular, your long standing psychiatric condition, in the stressful circumstances in which you found yourself, had the effect of impairing your ability to exercise appropriate judgment and to make calm and rational choices, impaired your ability to appreciate the wrongfulness of what you were then doing, and significantly contributed to the commission of the offence.
[1][2007] VSCA 107; 16 VR 269.
I am further satisfied that as a result of your psychiatric condition, a sentence of imprisonment will weigh substantially more heavily on you than it would on a person in normal health. You have now been in custody, in respect of the offence for which you are to be sentenced, for a period of 18 months. During that time you have been transferred from the Melbourne Assessment Prison to the Metropolitan Reception Centre, to Port Philip Prison, and then back to the Metropolitan Reception Centre. During each of those periods of time, you have been involved in a number of incidents in which you have been subjected to violence, and in which you have been also the victim of bullying. I accept your mother’s evidence that you are fearful of your situation, and that you have not been coping well.
At the same time, notwithstanding your difficult circumstances in jail, and to your credit, you have undertaken a drug education program, and a drug relapse prevention program. I was informed by your counsel, and I accept, that all the random drug tests carried out on you during your time in custody have been negative. Your mother, who is well familiar with your condition when you do take drugs, is satisfied that during your term of imprisonment you have been free of the use of drugs, and that you have been taking your medication. Your progress in jail is commendable, particularly given the difficulties which I understand you have been subjected to. It also gives some, albeit limited, hope for your rehabilitation. However, I am concerned that, apart from being prescribed medication, you have not had the opportunity to undergo any counselling to assist you to understand, and gain insight into, the wrongfulness of your offending.
In this context your psychological problems are also relevant to the question of specific deterrence. It was accepted by Mr Stuart that your period of imprisonment has, it would seem, on balance been beneficial for you, notwithstanding that you have found it difficult. However, I do accept that, as a result of your condition, the term of imprisonment which should be imposed on you, in order to achieve specific deterrence, should be less than it would be if you were in normal health.
The offending for which you have been found guilty is particularly serious. You intentionally used a knife to inflict serious injury on Dr Dib. Although I am satisfied that you did not intend to inflict injuries which were as severe as those which ensued, nonetheless you intentionally used the knife to stab Dib in a vulnerable part of his body. As a result of your actions, Dib has suffered severe, permanent injuries which will significantly incapacitate him throughout his life. If it were not for your psychiatric condition, it would be necessary to impose upon you a substantial term of imprisonment, not only as a punishment to you, but also in order to properly express the Court’s and community’s condemnation of your wrongdoing, and to provide a general deterrent to others who may be like minded to use knives and other dangerous weapons as you did. However, as I have already stated, in my view your psychiatric condition is a significantly mitigating circumstance. Your psychiatric condition reduces your moral culpability, and moderates the punishment which needs to be imposed on you as a specific deterrence. It is also necessary to take into account my finding that, because of your condition, a sentence of imprisonment will weigh more heavily on you than on a person in normal health. Finally, in my view, because of your psychiatric condition, the consideration of general deterrence should be substantially moderated. I do not consider that in a case such as yours, it would be appropriate to impose a sentence holding you up as an example to others.
In my view, all those considerations combine to reduce the term of imprisonment which would otherwise have been imposed on you for your serious offending. Thus, the sentence of imprisonment which I am about to pronounce is substantially less than that which would have been imposed on you, if not for the evidence of your psychiatric condition. Further, I am persuaded by the matters put to me by Mr Stuart that, as a result of that consideration, it would be appropriate to allow for a longer than usual period in which you are to be eligible for parole, in order that, if the Parole Board considers it appropriate, you have a reasonably substantial period of supervision while you are rehabilitated into the community after completing your sentence. Your rehabilitation is not only important for your own sake, but even more so for the community. In that respect, I will direct that the reports of Dr Kleeberg and Dr Walton, the evidence of your mother, the helpful letter by your family detailing your history, and these sentencing remarks, all be sent to the Adult Parole Board.
For the reasons which I have thus set out I sentence you as follows. I sentence you for intentionally causing serious injury to Edward Ahamed Dib to a term of imprisonment of 4 years and 6 months. I fix a minimum non-parole period of 2 years and 3 months. Pursuant to s 18(4) of the Sentencing Act 1991, I declare that 550 days be reckoned as served under the sentence, and I shall cause that declaration to be noted in the records of the Court.