R v Ghazlan

[2011] VSC 178

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

SCI 2010  148

THE QUEEN

v

JOSEPH GHAZLAN

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	4, 5, 6, 7 and 11 April 2011
DATE OF SENTENCE:	3 May 2011
CASE MAY BE CITED AS:	R v Ghazlan
MEDIUM NEUTRAL CITATION:	[2011] VSC 178

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CRIMINAL LAW – Sentence – Defensive homicide – Mental illness – Diminished moral culpability – Protection of the community.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms M Williams SC	Office of Public Prosecutions
For the Accused	Mr J Williams and Mr C Farrington	Victoria Legal Aid

HIS HONOUR:

1. Mr Ghazlan, you have pleaded guilty to carrying out conduct which killed Edwin John (John) Wyatt in the belief that it was necessary to carry out that conduct in order to defend yourself from the infliction of death or really serious injury and where you did not have reasonable grounds for such belief.  I shall refer to this offence by the short description of defensive homicide.

1. You have suffered from psychiatric illness for many years.  This illness has contributed not only to your conduct in killing Mr Wyatt, but also to a prior appearance in this court in December 1990.  Your conduct in killing John Wyatt was captured in its entirety by closed circuit television.  On 22 December 2009 you entered a lift on the fourth floor of No.1 Holmes Street, Northcote, which is a public housing estate for residents over 55.  You travelled to the ground floor.  You faced towards the doors of the lift.  When they opened John Wyatt was directly opposite you apparently waiting to enter the lift.  You attempted to walk out of the lift into the foyer area.  John Wyatt attempted to trip you by impeding your progress with his right shin.  You stumbled but did not fall and in a quick and almost seamless motion you turned, produced a knife from your pocket and stabbed Mr Wyatt on several occasions.  At post-mortem, linear defects consistent with stab wounds were observed to Mr Wyatt's left eye region, his chin, his neck and his abdomen.  What are probably defensive wounds were observed to the inside of his left elbow (the antecubital fossa), his left forearm and his left wrist.

1. By any reasonable measure your response to the attempted trip was brutal and grossly disproportionate.  You were originally charged with murder.  Your plea to defensive homicide means that I must sentence you on the basis that you had a genuine belief that stabbing Mr Wyatt was necessary to avoid him inflicting upon you death or really serious injury.  I must also sentence you on the basis that there were no reasonable grounds for that belief.

1. I consider that your psychiatric illness provides the most cogent explanation for your conduct.  You have suffered some form of psychiatric illness for many years.  In 1990 Dr Lester Walton, a psychiatrist, assessed you for legal forensic reasons.  He observed then that you had a documented psychiatric history dating back to 1974.  You had been variously diagnosed as suffering from endogenous depression and paranoid schizophrenia.  Your behaviour then was consistent with unequivocal deluded thinking.  Dr Walton then observed that your past behaviour included proclaiming that you were Jesus Christ and kissing the feet of people in the coffee lounge whilst an inpatient at Mont Park Psychiatric Hospital in 1979.  By 1981, you apparently were admitted to Plenty Psychiatric Hospital after threatening a female.  You claimed to be able to see the spirits of your persecutors.  You eventually responded to long term anti‑psychotic medication and were released.

1. I gather from Dr Walton's report that you returned to your birth place in Lebanon for some years but decided to return to Australia.  In 1989, whilst a resident of a boarding house in Brunswick, you suddenly and without provocation “launched a punching attack” on a 70 year old fellow boarder.  You believe he had intentionally interrupted your sleep.  Dr Johnson, a prison psychiatrist, considered that your beliefs stemmed from auditory hallucinations.  The caretaker of the rooming house came upon the scene and told you to leave.  You attacked him with a steel object hitting him repeatedly around the head.  You told the police that if the caretaker had not told you you could stay at the rooming house, you would have killed him.

1. You were charged with various offences arising out of this episode and the committal hearing was fixed for 10 January 1990.  You attended court, but apparently became agitated when your surety failed to appear.  You went to a café in Victoria Parade.  I quote from the reasons from the reasons for sentence of Mr Justice Southwell:

You walked behind the counter looking angry and tense, picked up a knife and then attacked Miss Harvey, a nurse whose face was known to you but with whom you had no previous contact.  You appeared to stab her repeatedly but miraculously, as it appears to me, she escaped with two lacerations to the chest area, bruises to the back and a headache.  An onlooker has described the attack as vicious.

1. You were sentenced on both incidents then to four years six months' imprisonment with a three year minimum term before eligibility for parole.  It was accepted by the learned sentencing judge that you suffered from paranoid schizophrenia.  He summed up the tension and competing sentencing factors in these terms: 

On the one hand, mental disorder tends to make criminal conduct less blameworthy.  On the other, the community wants the courts to protect it from uncontrollable outbursts of violence which may be repeated when the offender is allowed to go free.

1. It seems that you have only been in intermittent contact with psychiatric services after your release from prison.  In 1996, you threatened a staff member of a community mental health service.  You then exhibited persecutory interpretations of routine events in your environment but were not considered psychotic.  In 2009 at Heidelberg Magistrates' Court you were convicted of indecent assault, assaulting police and resisting arrest.  You were placed on a Community Based Order, a condition of which was that you submit to psychiatric treatment as directed by the Regional Manager of the Heidelberg Community Correctional Services.  In June 2010 you told Dr Walton of this offending:

He stated that he had been persecuted by the manageress of the boarding house where he was residing at the time, she being about 50 years of age.  He became increasingly annoyed because she repeatedly reported him to police regarding his cannabis use, and he clearly identifies feeling vengeful when he exposed his penis 'to annoy her'.

1. You told Dr Walton that you put your arms around the manageress.  You had only served months of the Community Based Order when you killed John Wyatt.

1. It is abundantly clear that your predisposition to persecutory thoughts carried through until December 2009.  You described to police that John had been hassling you for a period of three months, that he whistled to you like you were a woman and that his whistling, that you had heard from four floors distant, annoyed you that evening and made you upset.  You have been examined by a number of psychiatrists.  Dr Walton tends to a diagnosis of paranoid schizophrenia with a differential diagnosis of chronic delusional disorder.  Dr Sullivan's differential diagnoses are of paranoid schizophrenia (with a somewhat indolent course in recent years) or of cannabis induced psychotic disorder.  Dr Sullivan, as I understand it, did not offer a primary diagnosis in his reports but in his oral evidence it seemed to me that he leaned towards the paranoid schizophrenia diagnosis.  Whatever the primary diagnosis be, Drs Walton and Sullivan agreed that your thought processes at the relevant time were if not delusional, then seriously persecutory.  It does not appear that you were receiving any psychiatric treatment in 2009, nor had you for some years, despite the fact that it was a condition of the earlier mentioned Community Based Order that you submit to such treatment.

1. I have also been supplied with your Forensicare medical files that include material relating to your mental state extending back to 1974.  They evidence a depressing history of mental illness.  That mental illness has frequently manifested itself in you holding persecutory beliefs and either acting with violence or threatening violence in response to those unfortunate enough to be the subject of those beliefs.

1. Your illness has compromised your life for many years.  You have never married and it does not seem that you have ever formed any close relationships.  You have worked only intermittently since you became unwell and you have lived in various rooming houses over the years.  You are the youngest of five children but have lost contact with your siblings.  You were educated in Lebanon to the age of approximately 17 and then returned to your grandparents' village where you trained in carpentry.  You were sponsored to Australia as a 19 year old in 1969 and you worked productively until your mental illness in 1974.  You are now 61 and apparently in sound physical health.

1. It is impossible not to feel sympathetic to your position.  Your illness has diminished the quality of your life and has left you facing a second lengthy term of imprisonment.  Your illness is, however, only one of a number of factors that I must consider.  A number of victim impact statements have been tendered and read to the court.  Those who loved John Wyatt grieve for him. 

1. They, correctly, in my view, see his death as a senseless tragedy.  They wonder how it could be that a man with your mental health history could be so readily accommodated in public housing for the aged.  These are legitimate questions but ones that are regrettably beyond the scope of this sentencing exercise.  I am obliged to and I do take into account their suffering.

1. Your illness brings into stark focus the same two competing sentencing considerations that Justice Southwell identified 21 years ago.  I accept that your mental disorder makes your conduct less blameworthy or morally culpable.  In one sense you have already derived a benefit for it as, were it not for the paranoid delusions, I consider you certainly would have been convicted of murder.  Having said that, the fact is that you have pleaded guilty to defensive homicide and I consider that any assessment of your blameworthiness or moral culpability must include a consideration of your mental state at the relevant time.  I note that in 1991 you were originally charged with attempted murder but on that occasion as well pleaded guilty to lesser offences.  The learned sentencing judge on that occasion took account of your reduced moral culpability as I do on this occasion.  In other words, I accept that your moral culpability is reduced considerably by your mental illness.

1. The competing sentencing consideration that I must consider carefully is that of the protection of the community, (s 5(1)(e) of the Sentencing Act 1991). I am satisfied that this aspect needs to be given a good deal of weight in the sentencing exercise.

1. The nature of your past history of conflict and of your current offending is such that your response to objectively trivial offence is often grossly disproportionate and, on this occasion, homicidally violent.  It seems that you have had relatively little psychiatric treatment since your release from prison in the early 1990s.  I do not understand you to be receiving treatment now.  If you consent to and receive treatment, it may be that you present less of a threat to the community than I currently perceive.  Should you remain untreated or uncompliant with treatment then, for as long as you are physically able to do so, I consider that you will continue to present a threat to anyone who offends you. 

1. I have already adverted to your reduced moral culpability and the need to protect the community and have endeavoured to explain hour your mental illness has impacted these sentencing considerations.  It is also relevant in other ways.  I regard the need for general deterrence as moderated significantly by your illness.  Others in your position are unlikely to be deterred from similar conduct by any sentence I pass on you.  I consider you have some insight, as evidenced by your remarks to Dr Walton that you “shouldn't have used a knife” in the face of an unarmed victim and you didn't want to go back to “Pentridge”, and accordingly I consider that specific deterrence has some role to play.  I am not satisfied that imprisonment will weigh more heavily upon you than it would a normal offender and I have no evidence that it may significantly and adversely affect your mental health.  It is to be hoped that a structured environment and access to mental health professionals may achieve an improvement in this regard.  I am very guarded about your prospects for rehabilitation as I consider that they are entirely dependent upon your future mental well being.

1. You have pleaded guilty to defensive homicide and thus spared the community the cost and inconvenience of a trial and the relatives and friends of the deceased the anguish of that process.  You are entitled to credit for this.  Beyond your plea, however, I have been unable to detect any substantial and genuine remorse for your actions, although your mental illness may well provide an explanation for its absence, or at least my failure to detect it.

1. I have found this a difficult sentencing exercise.  The sentence I am about to impose attempts to resolve the tension between the relevant sentencing factors, particularly those of protection of the community and your reduced moral culpability.  I anticipate that when you are released on parole your integration back into the community will be closely monitored.

1. On the charge of defensive homicide I sentence you to ten years and six months’ imprisonment.  I direct that you be eligible for parole after serving seven years and six months of that sentence.  But for your plea of guilty, I would have sentenced you to twelve years and six months’ imprisonment with a minimum of nine years and six months before parole eligibility.

1. I declare that 496 days of this sentence, not including today, have been served by way of pre-sentence detention.