R v Issa
[2015] VSC 469
•4 September 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0075
| THE QUEEN |
| v |
| FATAH ISSA |
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JUDGE: | BEALE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 August 2015 |
DATE OF REASONS: | 4 September 2015 |
CASE MAY BE CITED AS: | R v Issa |
MEDIUM NEUTRAL CITATION: | [2015] VSC 469 |
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CRIMINAL LAW – Sentence – Murder – Common assault – Plea of guilty - Traumatic childhood – Post-traumatic stress disorder – Cognitive impairment - Reduced moral culpability.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Rochford QC | Office of Public Prosecutions |
| For the Accused | Mr D Hallowes and Ms A Beech | Stary Norton Halphen Criminal Lawyers |
HIS HONOUR:
Introduction
Fatah Issa, you have pleaded guilty to the murder of Shaun Matthew Wright in Fitzroy on 17 March 2013. The maximum sentence for murder is life imprisonment.
You have also pleaded guilty to two charges of common assault in Clifton Hill on 16 March 2013, the first on Dominic Goldsworthy and the second on his friend Patrick Newman. The maximum sentence for common assault is 5 years.
Summary of Offences
I will summarise the offences in chronological order.[1]
[1] The summaries are based on the agreed prosecution summaries given at your plea hearing.
At about 12.40am on Saturday 16 March 2013, you went to a McDonalds in Queens Parade, Clifton Hill. You had a glass bottle with you, which you put on the service counter. You engaged various people in conversation. After about 10 minutes, you approached Goldsworthy and Newman and struck up what was at first a friendly conversation with them as they waited in the queue. But you soon became abusive, for no apparent reason. The two men laughed it off.
Picking up your bottle, you exited the store but you did not leave. Outside, you pulled your windcheater hood over your head and walked back into the store. You took a swing at Goldsworthy, who stepped back, but he was scratched to the neck. In the agreed summary of facts tendered by the prosecution, the Crown states that it cannot say what caused the scratch. It did not allege that you struck at Goldsworthy with your bottle or any other object and, accordingly, I proceed on that basis.
Goldsworthy and Newman quickly left the store but you were not done. Outside, you knocked out of Goldsworthy’s hand the brown paper McDonalds bag that he was carrying. You then turned your attentions on Newman, striking him to the left side of his head with your right hand.
You ran off. You were arrested a short time later in parkland a short distance from the McDonalds and taken to Fitzroy Police Station for interview. Because of your level of intoxication, you were considered unfit for interview.
You were released from the police station in the early hours of 16 March 2013.
Shaun Wright was murdered in the early hours of 17 March 2013. The circumstances leading up to his death are as follows.
Wright and two of his friends, Darryn Harvey and Christopher Lanigan, were out celebrating a friend’s birthday that Saturday night. They attended a number of licensed premises in Fitzroy and Collingwood. At about 3.30am they were walking on Smith Street, Collingwood. Wright picked up a piece of wood from a skip and, for unknown reasons, threw it towards a parked Ford. It struck the Ford. There were three young African women seated in that Ford, including Shewit Wubneh. They quickly got out. Wright ran off.
A short time later, a man named Deyar Musa and some other females joined the first three women. They all got into the Ford and went in search of Wright, with Musa driving. They spotted Wright near the Tankerville Arms Hotel on the corner of Johnston and Nicholson Streets. You happened to be just outside the hotel when some of the women got out of the car, crossed the road and chased Wright who ran up a laneway beside the Tankerville. One of the women fell on cobblestones in the laneway. You asked her what was happening but she ignored you and continued after Wright. You decided to join the chase. Musa also continued to pursue Wright in the car.
Eventually, having run down a number of laneways and a side street, Wright found himself back on Johnston Street, not far from Brunswick Street. By this time Musa had parked his car nearby and he, along with one of the original three women, approached Wright.
What then happened was caught on CCTV cameras outside 104 Johnston Street. Words were exchanged. Wright kept backing away. Musa took hold of Wright by the arm or clothing. Wubneh came up. She and Musa started striking Wright.
You had not given up the chase. Suddenly, you ran up to the group. You had a broken beer bottle in your hand. You struck Wright several times to the neck and torso with that bottle, causing immediate and significant bleeding from his neck.
Wubneh struck Wright with an umbrella that she picked up from the gutter then she, Musa and one of the other women left, getting back in their Ford. You took off too, on foot, pulling the hood of your windcheater up as you did so.
Wright collapsed to the ground and died. The post mortem indicated that he had suffered four sharp injuries to the right neck and one sharp injury to the right clavicle region. There was a further sharp injury anterior to the right shoulder.
You were arrested a few days later, on 20 March 2013. Your record of interview was largely no comment, as was your right, but as a consequence, there is no contemporaneous account from you as to why you chased and attacked Wright. Whether you would have been able to provide one is doubtful. It appears from various reports, which I will turn to later, that you have little memory of the events of that night or the reasons you acted as you did. By all accounts, you were heavily intoxicated and also under the influence of cannabis and, possibly, other illicit drugs.
One possible explanation for your behaviour which is canvassed in the reports is that you believed mistakenly that you were defending the African women from Wright. I hasten to add there was no objective basis for such a belief. Wright was being chased, not vice versa. In Johnston Street, Musa and Wubneh were the aggressors, not Wright. But in a report written by Dr Bell from Forensicare, where he evaluates your poor memory of the events as credible due to your intoxication at the time and history of black outs, he says:
Mr Issa stated he has a memory of girls screaming and of them running next to him. He stated that he recalled one falling down and him asking her “are you alright?”. Mr Issa then indicated that he thought the women were being chased and that he should help them out. He stated that he has no memory of anything that happened after this until he woke up at home the next day.[2]
[2]Report dated 4 August 2014, 6.
Dr Bell went onto say:
[T]here is a possibility that his action was precipitated by the triggering of traumatic memories and emotional responses from his early life in Somalia when he heard the women screaming and that he formed an apprehension that they were in great danger.[3]
[3]Ibid 8.
I will turn to your early life in Somalia shortly.
Procedural History
You have been in custody since your arrest on 20 March 2013, approximately two and half years.
After a contested committal hearing in October 2013, you were committed to stand trial for the murder, but in September 2014 you were found unfit to stand trial. You were placed in Thomas Embling Hospital from October 2014 until April 2015, when you were declared fit to stand trial.
On 8 May 2015, you pleaded guilty to the murder of Wright.
In relation to the matters involving Goldsworthy and Newman, there was also a contested committal and you were committed on more serious charges but those matters resolved into a plea of guilty to the two common assaults - pleas that were entered at the plea hearing on 7 August 2015.
Consequences
Shaun Wright was born on 22 December 1991. He was only 21 years of age when you killed him. He was not your only victim. He came from a close knit family. His family have been devastated by his violent and premature death. I have received victim impact statement from Wright’s mother Rhonda, father Stephen, sister Zoe and grandmother Effie Coates. Their suffering is intense and enduring. I have also received victim impact statements from friends Christopher Lanigan and Darryn Harvey, who were with Wright for most of the night on which he died, and from Adam Mills and Matthew Harvey. Wright’s friends also continue to struggle with their grief.
Personal Circumstances
As I said earlier, you were found to be unfit to stand trial in September 2014 and placed in Thomas Embling Hospital. The story of your own life makes that development unsurprising.
You were born in Somalia in 1988. Not long after your birth, that country was plunged into chaos. I heard evidence on your plea from Fuad Jama, the founder and director of Basic Needs Australia Inc., about Somalia’s civil war that began in 1990. Jama’s organisation has for many years assisted in the resettlement of refugees from Somalia and other African countries.
In Jama’s words:
[I]n 1990 Somalia became a state of complete anarchy, with inter clan violence rampaging through-out the country, where fighting among rival faction leaders in the south resulted in the killing, dislocation and starvation of thousands of Somalis and those who managed to flee ended up in appalling conditions at refugee camps at the border areas of Kenya and Ethiopia.[4]
[4]Report dated 3 August 2015, 1.
When your family arrived in Australia in 1995, it was assisted by Jama and his organisation. You were only 7 when your family arrived here but you had already experienced much hardship.
When you were about 3 years of age, your family home was destroyed. You, and three siblings, were captured by militia. You are one of 13 children. Two of your siblings were killed by the militia. You witnessed many horrific scenes of violence during your time as a captive. It was approximately 18 months before you rejoined your family when you were about 5. Your mother recalls your fear as a child that your family would be harmed again.
As I said, in 1995 the family relocated to Australia on humanitarian visas after spending time in a refugee camp in Kenya.
You attended Preston North East Primary.
Your family life was again disrupted in 1998 when your parents divorced.
You completed Year 10 at Reservoir College but it seems your behaviour there was difficult.
You were already using illicit drugs and drinking alcohol to excess.
Since leaving school, you have had intermittent work, at McDonalds and as a scaffolder. For several years, you did voluntary work at a Mosque, preparing bodies for burial.
Antecedents
You began getting into trouble with the law in 2004, when you were 16. Your criminal history is not extensive but it is instructive. Your first adult court appearance was in early 2008 for possession of a drug (cannabis) and dishonesty offences. In 2008, you were found guilty of being drunk in a public place, assault police and escaping. Later in 2008 there were convictions for possession of cannabis and drunk in a public place. In 2010, you were convicted of possessing a weapon. In February 2012, you were placed on a 12 month community correction order (‘CCO’) for making a threat to kill, assault with a weapon and use and possess a controlled weapon. In August 2012, for contravening that order, the CCO was varied to run for 15 months. You were on that order when you committed the offences that I must sentence you for today.
Reports
As one might expect with someone found unfit to stand trial, many reports were available on your plea. I had the benefit of reports from Dr Lester Walton, a consultant psychiatrist;[5] Mr Guy Coffey,[6] a clinical psychologist; Mr Martin Jackson,[7] a neuropsychologist; and Dr Douglas Bell,[8] a consultant psychiatrist with Forensicare. There are some differences of opinion in these reports – especially as to your level of intelligence and whether you have an acquired brain injury - but there is no disagreement as to the fact that you have a severe post-traumatic stress disorder that can be traced back to your childhood experiences in Somalia.
[5]Report dated 5 August 2013.
[6]Report dated 14 August 2014.
[7] Report dated 31 July 2014.
[8]Reports dated 4 August 2014 and 13 April 2015, the former commissioned by the Office of Public Prosecutions, the latter by Justice Lasry of this Court.
Dr Bell, who, at the request of Justice Lasry of this court, wrote the most recent report, dated 13 April 2015, described you as, ‘undoubtedly, a severely traumatised man with an appalling early developmental history of exposure to severe and sustained violent trauma against both himself and his family, against a background of ongoing social violence and chaos in Somalia.’[9]
[9]Report dated 4 August 2014, 7.
No doubt those early experiences contributed to your longstanding drug and alcohol problems. All of the reports refer to your abuse of drugs and alcohol over many years, which intensified in the weeks leading up to the current offences.
Mr Martin Jackson,[10] a neuropsychologist, conducted various formal tests on you in 2014. He found you to have a full scale IQ of 51, which is consistent with a mild to moderate intellectual disability. He comments that:
Mr Issa has performed in the extremely low range in every cognitive domain apart from reading. He has extremely severe (to profound) impairment in the areas of processing speed, higher level attention, working memory, new learning and memory, perceptual abilities and executive functions … [11]
[10] Report dated 31 July 2014.
[11]Ibid 19.
He went on to say ‘I have no doubt that Mr Issa has an acquired brain injury (ABI) and that his cognitive profile is indicative of an extremely severe ABI.’[12] In Mr Jackson’s opinion, three factors may have contributed to your cognitive impairment - your childhood trauma, your abuse of alcohol and drugs and two significant head injuries for which you were hospitalised, the first in 2003, the second in 2011. Other report writers have assessed you as functioning at a higher level. Dr Walton, consultant psychiatrist, stated ‘Mr Issa seems to be of normal intelligence but there is at least a suggestion that he may have sustained significant brain injury.’[13] Dr Walton did not administer formal testing. In a subsequent report,[14] Dr Walton opined that you ‘exhibited no significant current cognitive deficit’. Mr Coffey, clinical psychologist, referring to Mr Jackson’s results, said:
It is my opinion that the test results overstate Mr Issa’s level of cognitive incapacity, and that they can in part be attributed to anxiety and a disinclination due to dysphoria and demoralization to persist with difficult tasks. Having said that, there is certainly a basis to believe his cognitive functioning is well below normal.[15]
[12]Ibid 19.
[13]Report dated 5 August 2013, 4.
[14]This subsequent report by Dr Walton is referred to in Dr Bell’s report dated 4 August 2014, 3.
[15]Report dated 14 August 2014, [65].
Dr Bell administered cognitive testing to you and concluded ‘[t]he overall impression was of a significant degree of cognitive impairment, consistent with an acquired brain injury.’[16] In his later report, Dr Bell noted that ‘your testing on more formal testing has been inconsistent and highly variable.’[17] An MRI scan was taken in relation to the issue of acquired brain injury. The results indicated ‘a minor degree of brain scarring.’[18] One cannot be certain about the extent of your cognitive impairment, but on the balance of probabilities, I find it to be significant and take it into account in sentencing you.
[16]Report dated 4 August 2014, 4.
[17]Report dated 13 April 2015, 3.
[18]Ibid 4.
Mitigatory factors
You are entitled to a significant discount for your plea of guilty for its utilitarian benefit. Wright’s family and, the community have been spared a trial. Your delay in entering that plea is in large part attributable to the fact that you were unfit to stand trial for a lengthy period. As for signs of true remorse, they are limited. Your counsel did not try to persuade me otherwise, notwithstanding your plea of guilty. I note in your sister’s letter she said you were deeply sorry for what you have put Shaun Wright’s family through and your mother’s letter also speaks of your remorse.
I accept, on the balance of probabilities that your chronic post-traumatic stress disorder contributed to your offending, and that your moral culpability is thereby reduced. Because of your history and mental condition, it is less appropriate to make an example of you to others so I will moderate general deterrence. Your cognitive impairment makes it appropriate to moderate specific deterrence too. Imprisonment is also likely to weigh more heavily on you because of your conditions, and I take that into account.
Prospects of Rehabilitation
Protection of the community is also an important sentencing consideration. The combination of your entrenched post-traumatic stress disorder, cognitive impairment and drug and alcohol history gives one pause in respect of your prospects of rehabilitation.
However, you are still a relatively young man. You have the support of your family. Many of them attended your plea hearing. Your mother also wrote in her reference that she visits you regularly. The fact that whilst at Thomas Embling your mental state improved to the point where you were fit to stand trial is a hopeful sign. So too is the fact that you accepted responsibility for your crimes by pleading guilty.
Sentence
Mr Issa, please stand up.
On the charge of murder, I sentence you to 18 years imprisonment.
On each charge of common assault, I sentence you to 7 days imprisonment, wholly concurrent with the sentence of imprisonment on the murder charge. I make the orders for total concurrency having regard to the principle of totality.
The total effective sentence is 18 years imprisonment.
I order you to serve a minimum term of 14 years imprisonment before becoming eligible for parole.
You have been in custody since 20 March 2013. I declare that you have spent 899 days in custody by way of pre-sentence detention.
I make the DNA retention order and the disposal order sought by the Crown.
Section 6AAA Discount
Finally, the Sentencing Act 1991 (Vic) requires me to indicate the sentence I would have passed on you but for your pleas of guilty.
I would have imposed a total effective sentence of 20 years with a non-parole period of 16 years.
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