R v GM
[2006] VSC 473
•21 December 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1606 of 2005
| THE QUEEN |
| v |
| G. M. |
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JUDGE: | BONGIORNO J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10-14, 17-20, 24 July and 24 November 2006 | |
DATE OF SENTENCE: | 21 December 2006 | |
CASE MAY BE CITED AS: | R v G.M. | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 473 | |
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CRIMINAL LAW – Manslaughter – Intentionally cause serious injury - Young offender – Adverse psychology reports – Criminal history – Use of knife – Questionable remorse and rehabilitation prospects – Need for significant specific deterrence and community protection.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B Kayser | OPP |
| For the Accused | Mr W Toohey | Galbally & O’Bryan |
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HIS HONOUR:
G. M. on 24 July 2006 you were found guilty by a jury in this Court of the manslaughter of Praivvez Shaik and of intentionally causing serious injury to Nathan Cuskelly. You were acquitted of murder in respect of Shaik. It is now my duty to sentence you according to law.
The Events
On the afternoon of the day you killed Praivvez Shaik you phoned a friend to arrange to go to a night club with him that evening. Later, that friend picked you up and on the way to the night club you both stopped at McDonald’s in Roxburgh Park where you met up with some other people known to you who had arrived in another car.
The vehicle you were in was parked in the McDonald’s car park not far from an entrance. Whilst you were there yet another vehicle, a white Mazda, entered the car park through the same entrance. There were four people in that car including the deceased and Cuskelly. As it entered the car park its tyres may have squealed and as it drove past you and your friends someone in that car called out something. It may have been something like “Come on you fucking wogs” or it may have been some other expression of aggression. The evidence on the issue is not easy to reconcile but, for sentencing purposes, the Court will assume that someone in the vehicle made an insulting and possibly racist remark towards you and your friends.
The white Mazda did not stop near you but continued to the other section of the McDonald’s car park which necessitated its performing a left hand turn to bring it to a position adjacent to the entrance to the restaurant where it stopped. Almost immediately you and some of your friends began walking towards this car. This action necessitated you walking some 40 metres or more. As you got close to the car one of your friends said to the occupants “What’s your problem?” or words to that effect. Although, again, the evidence is somewhat confusing it seems clear that by this time you were in possession of a hunting knife which you had obtained from one of the cars. At about the same time one of the occupants of the Mazda said something to the effect of :“Get the gun”, although there was no gun to be had. The words had been said to try and frighten you and your friends into desisting from what was obviously about to be some form of aggression. Almost immediately thereafter a fight commenced, in the course of which you used the knife to fatally stab Praivvez Shaik and then to stab Nathan Cuskelly in the hand. As might be expected the evidence as to the fight is not all consistent but it may be assumed for sentencing purposes that at some point Cuskelly may have been getting the better of one of your friends and you probably received some blows yourself.
In his plea on your behalf your counsel attempted to paint a picture of your having responded to violence or the threat of violence offered to you. He said that, in effect, the words spoken as the Mazda entered the car park had initiated the events which subsequently occurred, and that your actions were a response to that taunt. When you got to the Mazda one of the occupants threw the first punch. This, he submitted, somehow justified your having approached the Mazda armed with a hunting knife. This submission cannot be accepted. The best that can be said on your behalf is that your approach to the dead man and his friends followed some sort of insult or taunt – an insult or taunt which could not in the slightest way justify, excuse or even satisfactorily explain your actions. Why you, armed with a hunting knife, and your friends found it necessary to walk 40 metres or more across the McDonald’s car park towards a group of other young men who, whatever they or one of them might have said, were not, at that time, posing any threat whatsoever to any of you is not explained by the evidence or by anything your counsel has said on your behalf. By the time you got to the Mazda it would have been abundantly clear to the occupants who were alighting from that vehicle that your only intention was an aggressive one.
The jury acquitted you of Praivvez Shaik’s murder but found you guilty of manslaughter. In doing so they rejected your case that you were acting in self defence or the defence of your friends when you killed Shaik and then, later, inflicted injury on Nathan Cuskelly by stabbing him in the hand. The manslaughter of which you were convicted and must now be sentenced is manslaughter by an unlawful and dangerous act. You are indeed fortunate that the jury took the relatively lenient view of the evidence.
Personal circumstances
Between 13 February 2005 and 10 August 2006 no less than six reports were written concerning you and your offending. The first four were written, before these offences occurred, with respect to a series of other crimes committed by you over a relatively short period in the months leading up to 19 May 2005. None of the offences was the subject of a further presentment in this case as none of them constitutes a prior conviction for the purposes of sentencing. But the circumstances in which they were committed, their gravity, their frequency and the flagrant disregard for the law which they demonstrate are all matters relevant to your personal circumstances. This Court must consider these matters in fixing an appropriate sentence for the offences for which you are to be sentenced.
Full details of this offending were made known to the Court by your counsel who tendered a number of police summaries which concern some of them, together with extracts from the records of the Broadmeadows Children’s Court. The document tendered related to some forty-three offences which were finally dealt with by a Magistrate in that Court on 23 August 2005 whilst you were on remand awaiting trial on the murder and assault charges.
Between January 2004 and January 2005 you were involved in some 14 criminal escapades involving offences of car stealing, theft, handling stolen goods and driving offences, some of which are very serious. There were three charges of robbery and many charges of serious assaults and threats to kill. You were in the habit of carrying a knife and/or other weapons and were prepared to use them. The robberies included two cowardly robberies of taxi drivers and another of a youth at the Broadmeadows railway station.
Amongst this depressing litany of criminality there are two matters of particular significance to your present situation. The first relates to an event on 21 October 2004 when you inflicted two stab wounds on one Daniel Davis in Broadmeadows. Those stab wounds were to the abdomen and required surgery. Fortunately for Davis, unlike those you subsequently inflicted on Praivvez Shaik, those stab wounds missed Davis’ vital organs. Initially you denied this event when confronted by police and denied that you were in possession of a knife. Clearly the horror you should have felt upon realising that you had stabbed another person had no lasting effect on you – a little over six months later you killed Praivvez Shaik by a frighteningly similar stabbing.
The second matter of importance is that at the time this homicide was committed you were in breach of a curfew imposed upon you as a condition of bail upon which you had been released earlier that same day. You were bailed after being charged with armed robbery. The victim was allegedly a taxi driver. You have not admitted this charge and are due to be tried soon in respect of it and another charge of serious assault, the details of which your counsel could not supply. Accordingly I shall say no more about those charges other than to note the aggravating factor with respect to the sentence to be now imposed upon you constituted by the fact that when you committed this homicide and assault you were on bail and in breach of that court‑imposed curfew. This fact requires this Court to consider the cumulation of the sentences now to be imposed,[1] that is to say whether the sentences should be served one after the other and to what extent.
[1]s 16(3C) Sentencing Act1991.
Your background and developmental history has been detailed, more or less consistently, in a number of the reports which I have read. The material in those reports, which were tendered on your behalf, was not contested by the Crown so that the Court may rely, with some confidence, on what the authors of them say about your background and personal circumstances.
You were born in Baghdad, Iraq, of Iraqi Christian parents. Your father was a soldier, your mother a housewife and you have two siblings younger than you. You had one year of public schooling in Baghdad which you reported as being very severe and involving frequent and often callous physical punishment. In 1995 your family moved to Syria where your father worked on building sites. You did not attend school in Syria. Your family migrated to Australia in 1996 and lived with your father’s brother who had migrated some six months earlier. Upon arrival in Australia you attended St Thomas Moore’s Primary School, Hadfield, for three years and then Glenroy North Primary School.
When you were in Grade 6 at Glenroy North your parents separated, which event appears to have had a very significant effect upon you. When you commenced at Box Forest Secondary College in Year 7 your performance and behaviour declined and you told those who have examined you that you felt increasingly angry and resentful over your parent’s separation. You became defiant of your mother, began smoking and commenced to associate with undesirable friends. You began exhibiting violence at school and, as a consequence, received detentions and suspensions.
When you were in Year 9 you went to live with your father and in 2004 commenced at Broadmeadows Secondary College. However, you soon “dropped out” of school completely.
On 18 February 2005, before the offences for which you are now to be sentenced occurred, Mr Bob Ives, a clinical psychologist wrote a comprehensive report on your psychological state in light of the numerous offences upon which you were then awaiting trial in the Children’s Court. He expressed a particular concern with your general attitude to your offending. His assessment of you was that you were tense, angry, unhappy and emotionally reactive. This was about three months before you killed Praivvez Shaik.
On 23 March 2005 a Court report was written concerning you by Dr Stephen Mihailaides, a psychologist at the Children’s Court Clinic. Dr Mihailaides’ opinion was that at the time he saw you, you posed a risk to the community. He thought that any process of change which you might undergo on your own behalf would require several years of hard, active, work on your part. He described your rage as being a psychological issue complicated by numerous cultural, familial and personal factors.
Your father is said to have expressed support for Dr Mihailaides’ recommendation that sentencing in respect of the matters for which you were then on remand should be deferred to enable you to undergo treatment at the Melbourne Children’s Court Clinic. You appear to have attended at least some sessions at the Clinic but whether that treatment was to any degree effective or not is difficult to say. Approximately two months later you killed Praivvez Shaik.
On 5 April 2005 a pre-sentence report was written concerning you by Alicia Zineder, a juvenile justice worker. Ms Zineder recommended that for the offences for which you were then on remand you should be placed on a youth supervision order. She noted your immature approach to violence, your emotional underdevelopment and your behaviour which she described as being consistent with a conduct disorder diagnosis. She referred to your somewhat disrupted upbringing and to the probability that you were a witness to significant violence and trauma before reaching Australia as a very young child. This report was written five weeks before you killed Praivvez Shaik.
In a subsequent report written on 18 April, Ms Zineder repeated her recommendation that you be placed on a youth supervision order and referred to a number of support mechanisms which could be used to your advantage if that occurred. This was the last report written by Ms Zineder before you were charged with the murder of Praivvez Shaik.
Ms Zineder’s next report, written after you killed Praivvez Shaik, on 26 July 2005, contained a recommendation that you be given a custodial sentence in respect of your earlier offending. This report noted that you had acknowledged that you needed to address your violent impulsive behaviours and your attempted justification of your actions, particularly that of carrying a knife. However, by this time you were in far more serious trouble. Ms Zineder’s report was a valiant attempt at a rational appraisal of the available options in respect of a young person who appeared to have totally lost control.
The only report before this Court which specifically addresses the offences for which you are now to be sentenced is that of Mr Ian Joblin of 10 August 2006. Mr Joblin is a forensic psychologist. His report is somewhat pessimistic. He refers to the anger which you said you experienced upon your arrest following the homicide and your subsequent attendance at group programs relating to violence where you were apparently unable, or unwilling to discuss the events of 19 May.
Mr Joblin considered that if you continued to act in the way you did in the year or so leading up to May 2005, you would merit a diagnosis of having an antisocial personality disorder – a term which I take to mean no more than that you are someone who commits serious crimes: a very unfortunate label for a 17 year old. However, he was also prepared to accept that you had some contrition for what you had done – more than just sorrow or regret engendered by the knowledge that you are about to be punished. Whether it amounts to genuine remorse may be doubted but it probably goes some way in that direction.
Since you have been in custody on remand you have undertaken some self improvement courses and have acquired a number of certificates attesting to this. This is commendable and it is to be hoped that in the years ahead that you will spend in custody in serving your sentence you will continue on this course.
To say that your life is at the crossroads is trite. If, as Mr Joblin fears, you form an identity with the antisocial population of the prison system, your rehabilitation will be very difficult. It is to be hoped that the shock of what you have done and an awareness that criminal behaviour will inevitably lead to a life spent in and around police stations, prisons and courts will lead you to a firm decision to stay out of trouble in future. If you do not make this decision, your companions will be other criminals, you will be shunned by ordinary decent people and your life will be miserable. If you do, you can become a decent and productive member of society.
It is accepted by the Crown that you offered to plead guilty to the manslaughter of Praivvez Shaik in March of this year. There is no evidence of your having offered any plea with respect to the assault on Cuskelly but, having regard to the jury’s verdict, your offer with respect to the deceased will be taken into account in fixing your sentence. Whether it signifies remorse is doubtful – it may well have been simply a sensible forensic decision. However the legislation requires you to be given credit of having offered that plea.
It is possible for a young offender to serve part of a sentence of imprisonment in a Youth Training Centre. Whether that will occur in your case will depend upon whether the Adult Parole Board is prepared to exercise its jurisdiction to order your transfer to a Youth Training Centre[2] after your sentence commences. Otherwise you will serve your sentence in the adult prison system with all the disadvantages that that situation gives rise to. In determining your sentence I have not taken into account that the Adult Parole Board may make such an order in your case. It is not the function of this Court to seek to influence the Parole Board or interfere with the exercise of its administrative decision – making.
[2]Pursuant to s 244 Children and Young Persons Act 1989
The Court has before it a number of victim impact statements filed by Praivvez Shaik’s family. There are statements from his mother, his father, his sister, his brother and his uncle. They attest to the grief which this Australian-Indian family is suffering at the completely unjustifiable unwarranted and unnecessary loss of their son, brother and nephew.
Praivvez Shaik was clearly a much loved young man. His father describes the loss as inflicting upon him “pain beyond explanation”. He speaks of the brutal way in which Shaik was taken away from his family. His mother speaks of the dramatic change to her life brought about by her son’s death. She spoke of the effect that this crime has had on her and her husband’s family both in Australia and in India. Praivvez Shaik’s other relatives spoke in similar terms. His death at your hand is a tragedy which you caused.
The maximum sentence for manslaughter is 20 years imprisonment; for intentionally causing serious injury it is 20 years imprisonment. In fixing appropriate sentences the Court is required by law to take into account a number of principles.
The sentences imposed must punish you for the offences you have committed. That is to say the Court must inflict a penalty. The sentences imposed must deter you and others from committing offences of the same or a similar character. In your case specific deterrence, that is to say deterring you from committing similar crimes in the future, is unfortunately, of particular significance. This is not only because of what appears to be your general attitude towards violence but also because, not long before the events for which you are now being sentenced, you used a knife in not dissimilar fashion upon another person. The sentence must demonstrate to you that assault with a knife, whether resulting in the death of the victim or not, is antisocial behaviour of the most heinous kind and will result when you are apprehended in a significant deprivation of your liberty. If the shock of having almost killed someone once did not deter you from killing Praivvez Shaik, perhaps a gaol sentence will.
The sentence imposed upon you must be conducive to your rehabilitation. Having regard to your age, rehabilitation is an extremely important sentencing principle. The law takes the view that it is very much in the community’s interest that young offenders be sentenced in a way which is most likely to lead to their rehabilitation.[3] That is not to say, of course, that where, as here, the crime involved is of the utmost seriousness that rehabilitation should result in a sentence which is disproportionate to the gravity of the offence to which it relates.[4] In your case, even having regard to the somewhat pessimistic outlook which Mr Joblin has expressed, there must be some hope of effective rehabilitation. The condign punishment which these offences merit will be tempered by the need to keep in mind that for society’s sake, as well as for yours, you must become a law abiding citizen. It is appropriate that the total sentence you will receive be such as to acknowledge your youth and the sentencing principle of rehabilitation. However, in particular there will be a longer possible parole period to enable you to complete the latter part of your sentence in the community, provided you qualify for parole at or about the time your minimum term expires.
[3]R v Mills [1988] 4 VR 235
R v Tran (2002) 4 VR 457
[4]R v Bell [1999] VSCA 223
On the question of rehabilitation it should also be noted that the law in this State wisely provides that, because of your age, your identity cannot be published other than by order of an appropriate court. You will be punished by being deprived of your liberty. Your rehabilitation and return to the community will not be hampered by having to contend with being publicly vilified for what you have done.
The sentence imposed upon you must demonstrate a denunciation by the Court of the type of conduct in which you engaged. In this case it must denounce the apparent readiness which you displayed to use a knife for the purpose of killing another human being.
The final consideration which must be taken into account is that a sentence must be such as to protect the community from the offender. Having regard to your conduct in the period immediately prior to the homicide, protection of the community is a consideration which must be given weight in this case. It will be given such weight by imposing a sentence which will protect the community for the length of time you are actually in custody and, it is hoped, by deterring you from further offences of the same kind in future. If you are granted parole the community will be protected during your parole period by the fact that you will serve such parole under supervision.
The Crown and your counsel have agreed that you have spent, up until today, a period of 280 days in custody in respect of the offences for which you are about to be sentenced. That period will be counted as time already served in respect of the sentence to be imposed.
It is the sentence of the Court that for the offence of manslaughter of Praivvez Shaik you be imprisoned for 8 years; for the offence of intentionally causing serious injury to Nathan Cuskelly you be imprisoned for 3 years. It is ordered that one year and six months of such term be served cumulatively on the term of 8 years imposed for the manslaughter; making a total effective sentence of 9 ½ years imprisonment. It is further ordered that you serve a minimum of 6 years imprisonment before being eligible for parole. There will be a declaration that 280 days is to be reckoned as pre-sentence detention in respect of the sentences now imposed and it is directed that that declaration be entered in the records of the Court.
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