R v Hakimi
[2016] ACTSC 139
•15 June 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Hakimi |
Citation: | [2016] ACTSC 139 |
Hearing Date: | 24 May 2016 |
DecisionDate: | 15 June 2016 |
Before: | Burns J |
Decision: | See [21]-[27], [29] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – particular offences – property damaging offences – damaging property – offences against the person – wounding – acts endangering life – offender intoxicated at time of offences – mental health issues – early plea of guilty – general deterrence – terms of imprisonment imposed. |
Legislation Cited: | Crimes Act 1900 (ACT) ss 21, 27 Criminal Code 2002 (ACT) s 403 |
Parties: | The Queen (Crown) Imran Hakimi (Offender) |
Representation: | Counsel Ms K MacKenzie (Crown) Mr J Sabharwal (Offender) |
| Solicitors ACT Director of Prosecutions (Crown) Rachel Bird & Co Solicitors (Offender) | |
File Numbers: | SCC 263 of 2015; SCC 264 of 2015 |
BURNS J:
Imran Hakimi, you have pleaded guilty to a number of offences which you committed on 12 November 2015.
Background
On that date you intentionally wounded Huichi Yang. You also intentionally wounded Charles Ayer. You recklessly caused damage to a vehicle belonging to Judith Wilson. You also recklessly caused damage to a car belonging to Huichi Yang and to a car belonging to Charles Ayer. You intentionally and unlawfully used an offensive weapon, being a machete, against Charles Ayer that was likely to endanger human life, and you intentionally and unlawfully used an offensive weapon, namely, a machete, against Huichi Yang that was likely to endanger human life.
I note that an Agreed Statement of Facts was tendered at the sentence hearing. I will not refer to that Statement of Facts in detail. It is sufficient to note that between 11.20 pm and midnight on 12 November 2015 in Belconnen you approached a number of vehicles, damaging them with a machete. You also injured two people travelling in separate vehicles when you cut them to the neck or face area with a machete.
The maximum penalty for the offence of intentionally wounding, contrary to s 21 of the Crimes Act 1900 (ACT) (the Crimes Act) is five years imprisonment. The maximum penalty for the offence of an act endangering life, contrary to s 27(3) the Crimes Act is 10 years imprisonment. The maximum penalty for the offence of damaging property contrary to s 403 (1) of the Criminal Code 2002 (ACT) is 10 years imprisonment.
On 27 November 2015, you pleaded guilty in the ACT Magistrates Court to the charges which are now before me. You were committed for sentence to this Court and I note that you adhered to your pleas of guilty. At the time of the sentence hearing I raised the question of whether there was any material suggesting that you may have been intoxicated at the time you committed these offences. Subsequently, a Statement of Agreed Additional Facts was provided to me addressing the issue of whether you were intoxicated on the night in question. The Additional Facts state that you consumed alcohol with a number of other men at the apartment complex where you were residing between 9.00 pm and 11.00 pm on 12 November 2015. I accept that it is probable that you were, to some degree, intoxicated at the time you committed these offences.
Some of your conduct on 12 November last year may properly be described as bizarre. You made statements at the time of wounding Charles Ayer indicative of anger about family law proceedings in which you were involved, but your victim, Mr Ayer, was unknown to you and in no way connected with those proceedings. The other victim of the wounding offence, Huichi Yang, was similarly unknown to you. Indeed, the victims in relation to all of these offences were unknown to you and in no way connected with any family law proceedings with which you were involved.
I note that neither victim was badly wounded. Ms Yang suffered a cut to her neck and Mr Ayer suffered a cut on his chin. Thankfully, neither required significant medical treatment. The vehicles you damaged were also, as I have said, attacked at random and for no apparent reason.
A Psychologist's Report from Harold Bilboe, a registered psychologist, speaks of the distress you exhibited when he saw you on 6 November last year. This distress arose from your separation from your wife and children and ongoing access issues with regard to your children. You felt that your wife was acting unreasonably. Unfortunately, having seen Mr Bilboe at about 9 am on 6 November last year, you did not return to keep an appointment with him for treatment later that day.
No Pre‑Sentence Report was prepared for the sentence hearing, but counsel who appeared on your behalf was satisfied that adequate information was available in terms of your subjective features from the Report of Mr Bilboe.
Subjective Features
I note that you are 32 years old. Mr Bilboe notes that you came to Australia as a refugee at the age of 16, having witnessed significant traumatic events and the deaths of family members and several friends. You escaped from Afghanistan via Iran and then to Indonesia and by boat to Australia. You were a resident in the Woomera Detention Centre for an extended period of time, approximately four years, where you were exposed to repeated significant psychological and emotional trauma. I have no doubt that those matters continue to affect you to this day. The diagnosis of Mr Bilboe was one of major depression. He mentions the possibility of you also suffering from post‑traumatic stress disorder.
I take into account the fact that you have voluntarily sought out help in relation to these conditions and that you were making good progress before the commission of these offences. I accept on the basis of the material before me that you have reasonable to good prospects for rehabilitation, particularly if you continue with treatment and if you avoid the use of alcohol.
I note that the Report of Mr Bilboe refers to the possibility of your drinks on the evening in question having been spiked with some drug or other substance. This matter was not pressed by your counsel, and I think rightly so. There is simply no evidence to support it.
I take into account the testimonial from Clare Shapiro which was tendered at the sentence hearing. It says that you are a caring human being and that you were at this time affected by the separation from your children. It speaks of you suffering back and leg injuries and also of mental health issues resulting in you becoming depressed and suicidal. I note that Ms Shapiro is willing to support your rehabilitation and provide accommodation to you upon your release. I also take into account the evidence that was given at the sentence hearing, which again speaks of the present offences as being completely out of character.
Consideration
I take into account the fact that you have participated in educational programs within the Alexander Maconochie Centre. I accept that you have expressed remorse in relation to these offences. I also accept that these offences were out of character. You have a very short criminal history in which there are convictions for drink driving and contravening a Protection Order in 2011. Those offences are to a great extent irrelevant with respect to sentencing for the present matter, although it is of some interest to note that the reading with respect to the drink driving offence was a very high one, 0.188 grams of alcohol per 210 litres of breath.
I am satisfied that these offences occurred against a background of mental health issues and, in particular, depression, which was exacerbated by alcohol consumption. I am not satisfied that any mental health condition from which you suffer was causally connected to your offending. However, it is a matter which I must take into account as part of the background material.
You claim now not to have any recollection of these events, which, if it is true, suggests a high‑level of intoxication on this evening. I note that you entered early pleas of guilty with respect to these matters, and I will reduce by approximately 25 per cent the sentences which I would otherwise have imposed in order to reflect your pleas of guilty.
In sentencing with respect to the wounding offences I take into account that the wounds were relatively minor, and I say that without in any way detracting from the frightening experience which must have been experienced by the victims in relation to those matters.
With respect to the use of offensive weapon charges, I do note that the weapon used, a machete, was capable of inflicting death or very serious harm. It does not appear that those weapons were used with significant force on this occasion.
It was accepted, and again, I think rightly by your counsel, that the only possible sentencing option is imprisonment with respect to these matters. Whilst, as I have said, I do not accept that your mental health conditions were causally connected with the present offences, they do operate as part of the background in relation to you as a person who comes before this Court.
In my opinion, there should be some moderation of general deterrence when it comes to sentencing for this offence based upon your mental health conditions. I accept that you are unlikely to reoffend if you accept treatment and also if you avoid excessive consumption of alcohol. As such, specific deterrence does not loom large as a sentencing consideration with respect to these matters. But as I have said, it appears to me that the only possible sentencing option is one of full‑time imprisonment.
Sentence
With respect to the charge of damaging property, (CC15/10808), you will be convicted and sentenced to three months imprisonment, commencing on 12 November 2015, the date that you were taken into custody, and expiring on 11 February 2016.
On the charge of damaging property, (CC15/10809), you will be convicted and sentenced to three months imprisonment, commencing on 12 December 2015 and expiring on 11 March 2016. I will make a reparation order in favour of Hui Chi Yang in the sum of $690.59 with respect to that matter.
With respect to the third charge of damaging property, (CC15/10810), you will be convicted and sentenced to three months imprisonment, commencing on 12 January 2016 and expiring on 11 April 2016.
With respect to the charge of wounding Huichi Yang (CC15/10806) you will be convicted and sentenced to 12 months imprisonment, commencing on 12 April 2016 and expiring on 11 April 2017.
With respect to the charge of using an offensive weapon with respect to Huichi Yang, (CC15/10812), you will be convicted and sentenced to 15 months imprisonment, commencing on 12 May 2016 and expiring on 11 August 2017.
With respect to the charge of wounding Charles Ayer, (CC15/10807), you will be convicted and sentenced to 10 months imprisonment, commencing on 12 February 2017 and expiring on 11 December 2017.
With respect to the charge of using an offensive weapon with respect to Charles Ayer (CC15/10811), you are convicted and sentenced to 15 months imprisonment, commencing on 12 August 2017 and expiring on 11 November 2018.
I should make it clear that the reason for the differences in the sentences imposed for the two wounding offences was because, in my opinion, the wound which was inflicted on Ms Yang was slightly more serious than that which was inflicted on Mr Ayer.
The aggregate term of imprisonment to which I have sentenced you is therefore one of three years, commencing on 12 November 2015 and expiring on 11 November 2018. I will set a non-parole period of 22 months, commencing on 12 November 2015 and expiring on 11 September 2017.
| I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Burns. Associate: Date: 29 June 2016 |
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